Family Court Act, Article 3, Juvenile Delinquency Part 5, § 353.4: Transfer of Certain Juvenile Delinquents

A juvenile delinquency case generally has two phases: the fact-finding hearing and the dispositional hearing. The fact-finding is the phase during which the presentment agency offers evidence to a Family Court judge indicating that the minor committed acts that if committed by an adult would amount to a crime. It is equivalent to a criminal trial. Should the Family Court judge conclude that by a preponderance of evidence the minor did in fact do the acts described in the petition, the next phase is the dispositional hearing. The dispositional hearing is the equivalent of the sentencing phase of a criminal trial. Depending on the facts of the case there are several possible results of a dispositional hearing. For example, the minor may receive a conditional discharge or the minor may be placed on probation. If the minor suffers from a mental illness, the order of disposition may require that the minor be placed with the Division of Youth. Under New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.4, an order may require the transfer of the minor to the Division of Youth if it is determined that the minor suffers from an mental illness or mental retardation, and that he or she presents a risk of harm to himself or herself or to others.

Victor S. was alleged to have committed acts which, were he an adult, would constitute the crimes of attempted criminal sexual act in the first degree and attempted sexual abuse in the first degree. Victor S.'s 6-year-old cousin was the alleged victim. Victor S. entered an admission that he committed attempted sexual abuse in the first degree. Following a dispositional hearing Victor S. was adjudicated to be a juvenile delinquent. However, healthcare professionals produced records of Victor's extensive history of mental illness. As a result the order of disposition directed that he be placed with the Division of Youth.

1. Order of disposition: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 352.2
2. Order of protection: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 352.3
3. Conditional discharge: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.1
4. Placement: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.3
5. Designated felony acts; restrictive placement: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.5
6. Restitution: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.6

1. If at the conclusion of the dispositional hearing and in accordance with § 352.2 the court finds that the respondent has a mental illness, mental retardation or developmental disability, as defined in § 1.03 of the mental hygiene law, which is likely to result in serious harm to himself or others, the court may issue an order placing such respondent with the division for youth 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 mental retardation and 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 § 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 § 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 division for youth pursuant to the provisions of § 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 division for youth 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 § 352.2, 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 as manifested by threats or attempts at suicide or serious bodily harm or other conduct demonstrating he is dangerous to himself 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 § 353.5 if the court at the dispositional hearing finds that the respondent has a mental illness, mental retardation or developmental disability, as defined in § 1.03 of the mental hygiene law, which is likely to result in serious harm to himself 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 mental retardation and developmental disabilities who shall arrange for the admission of the respondent to an appropriate facility under his 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 of mental retardation and 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 division for youth. 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 mental retardation and developmental disabilities pursuant to this subdivision; or (ii) continue the restrictive placement of the respondent in the custody of the division for youth. (c) During such temporary transfer, the respondent shall continue to be under restrictive placement with the division for youth. Whenever the respondent is transferred back to the division the conditions of the placement as set forth in § 353.5 shall apply. Time spent by the respondent in the custody of the commissioner of mental health or the commissioner of mental retardation and 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 § 1.03 of the mental hygiene law is to be offered shall be completed until the commissioner of mental health or commissioner of mental retardation and 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 § shall be entered except upon clear and convincing evidence which shall include the testimony of two examining physicians as provided in § two hundred fifty-one.
5. If the respondent has been in detention pending disposition, the initial period of placement ordered under this § 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.

If your child is a respondent in a juvenile delinquency proceeding, it is important that he or she is represented by experienced counsel. Should your child be adjudicated to be a juvenile delinquent an order of disposition will be issued requiring that your child follow conditional discharge or probation rules, or be placed in a residence other than your home. If, however, it is determined that your child suffers from a mental illness, then it is possible that he or she will be placed with a social services agency. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully representing juvenile clients in New York Family Court as well as in criminal court who have been accused of committing misdemeanors and felonies. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those involved in juvenile delinquency matters in the following locations: