N.Y. Family Court Act § 735: Preliminary procedure; diversion services

§ 735. Preliminary procedure; diversion services. (a) Each county and

any city having a population of one million or more shall offer

diversion services as defined in section seven hundred twelve of this

article to youth who are at risk of being the subject of a person in

need of supervision petition. Such services shall be designed to provide

an immediate response to families in crisis, to identify and utilize

appropriate alternatives to placement and to divert youth from being the

subject of a petition in family court. Each county and such city shall

designate either the local social services district or the probation

department as lead agency for the purposes of providing diversion

services.

(b) The designated lead agency shall:

(i) confer with any person seeking to file a petition, the youth who

may be a potential respondent, his or her family, and other interested

persons, concerning the provision of diversion services before any

petition may be filed; and

(ii) diligently attempt to prevent the filing of a petition under this

article or, after the petition is filed, to prevent the placement of the

youth into foster care; and

(iii) assess whether the youth would benefit from residential respite

services; and

(iv) assess whether the youth is a sexually exploited child as defined

in section four hundred forty-seven-a of the social services law and, if

so, whether such youth should be referred to a safe house in accordance

with section seven hundred thirty-nine of this part; and

(v) determine whether alternatives to placement or services provided

pursuant to this section are appropriate to avoid remand of the youth to

such placement; and

(vi) determine whether an assessment of the youth for substance use

disorder by an office of alcoholism and substance abuse services

certified provider is necessary when a person seeking to file a petition

alleges in such petition that the youth is suffering from a substance

use disorder which could make the youth a danger to himself or herself

or others. Provided, however, that notwithstanding any other provision

of law to the contrary, the designated lead agency shall not be required

to pay for all or any portion of the costs of such assessment or for any

substance use disorder or detoxification services, except in cases where

medical assistance for needy persons may be used to pay for all or any

portion of the costs of such assessment or services. The office of

alcoholism and substance abuse services shall make a list of its

certified providers available to the designated lead agency.

(c) Any person or agency seeking to file a petition pursuant to this

article which does not have attached thereto the documentation required

by subdivision (g) of this section shall be referred by the clerk of the

court to the designated lead agency which shall schedule and hold, on

reasonable notice to the potential petitioner, the youth and his or her

parent or other person legally responsible for his or her care, at least

one conference in order to determine the factual circumstances and

determine whether the youth and his or her family should receive

diversion services pursuant to this section. Diversion services shall

include clearly documented diligent attempts to provide appropriate

services to the youth and his or her family unless it is determined that

there is no substantial likelihood that the youth and his or her family

will benefit from further diversion attempts. Notwithstanding the

provisions of section two hundred sixteen-c of this act, the clerk shall

not accept for filing under this part any petition that does not have

attached thereto the documentation required by subdivision (g) of this

section.

(d) Diversion services shall include documented diligent attempts to

engage the youth and his or her family in appropriately targeted

community-based services, but shall not be limited to:

(i) providing, at the first contact, information on the availability

of or a referral to services in the geographic area where the youth and

his or her family are located that may be of benefit in avoiding the

need to file a petition under this article; including the availability,

for up to twenty-one days, of a residential respite program, if the

youth and his or her parent or other person legally responsible for his

or her care agree, and the availability of other non-residential crisis

intervention programs such as family crisis counseling or alternative

dispute resolution programs or an educational program as defined in

section four hundred fifty-eight-l of the social services law.

(ii) scheduling and holding at least one conference with the youth and

his or her family and the person or representatives of the entity

seeking to file a petition under this article concerning alternatives to

filing a petition and services that are available. Diversion services

shall include clearly documented diligent attempts to provide

appropriate services to the youth and his or her family before it may be

determined that there is no substantial likelihood that the youth and

his or her family will benefit from further attempts.

(iii) where the entity seeking to file a petition is a school district

or local educational agency or where the parent or other potential

petitioner indicates that the proposed petition will include truancy

and/or conduct in school as an allegation, the designated lead agency

shall review the steps taken by the school district or local educational

agency to improve the youth's attendance and/or conduct in school and

attempt to engage the school district or local educational agency in

further diversion attempts, if it appears from review that such attempts

will be beneficial to the youth. Where the school district or local

educational agency is not the potential petitioner, the designated lead

agency shall contact such district or agency to resolve the truancy or

school behavioral problems of the youth in order to obviate the need to

file a petition or, at minimum, to remediate the education-related

allegations of the proposed petition.

(e) The designated lead agency shall maintain a written record with

respect to each youth and his or her family for whom it considers

providing or provides diversion services pursuant to this section. The

record shall be made available to the court at or prior to the initial

appearance of the youth in any proceeding initiated pursuant to this

article.

(f) Efforts to prevent the filing of a petition pursuant to this

section may extend until the designated lead agency determines that

there is no substantial likelihood that the youth and his or her family

will benefit from further attempts. Efforts at diversion pursuant to

this section may continue after the filing of a petition where the

designated lead agency determines that the youth and his or her family

will benefit from further attempts to prevent the youth from entering

foster care.

(g) (i) The designated lead agency shall promptly give written notice

to the potential petitioner whenever attempts to prevent the filing of a

petition have terminated, and shall indicate in such notice whether

efforts were successful. The notice shall also detail the diligent

attempts made to divert the case if a determination has been made that

there is no substantial likelihood that the youth will benefit from

further attempts. No persons in need of supervision petition may be

filed pursuant to this article during the period the designated lead

agency is providing diversion services. A finding by the designated lead

agency that the case has been successfully diverted shall constitute

presumptive evidence that the underlying allegations have been

successfully resolved in any petition based upon the same factual

allegations. No petition may be filed pursuant to this article by the

parent or other person legally responsible for the youth where diversion

services have been terminated because of the failure of the parent or

other person legally responsible for the youth to consent to or actively

participate.

(ii) The clerk of the court shall accept a petition for filing only if

it has attached thereto the following:

(A) if the potential petitioner is the parent or other person legally

responsible for the youth, a notice from the designated lead agency

indicating there is no bar to the filing of the petition as the

potential petitioner consented to and actively participated in diversion

services; and

(B) a notice from the designated lead agency stating that it has

terminated diversion services because it has determined that there is no

substantial likelihood that the youth and his or her family will benefit

from further attempts, and that the case has not been successfully

diverted; and

(C) where the proposed petition contains allegations of truancy and/or

school misbehavior, whether or not the school district or local

educational agency is the proposed petitioner, a notice from the

designated lead agency regarding the diversion efforts undertaken and/or

services provided by the designated lead agency and/or by the school

district or local educational agency to the youth and the grounds for

concluding that the education-related allegations could not be resolved

absent the filing of a petition under this article.

(h) No statement made to the designated lead agency or to any agency

or organization to which the potential respondent has been referred,

prior to the filing of the petition, or if the petition has been filed,

prior to the time the respondent has been notified that attempts at

diversion will not be made or have been terminated, or prior to the

commencement of a fact-finding hearing if attempts at diversion have not

terminated previously, may be admitted into evidence at a fact-finding

hearing or, if the proceeding is transferred to a criminal court, at any

time prior to a conviction.