§ 355.1 — New hearing; staying, modifying or terminating an order

New York § 355.1

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 5: The Dispositional Hearing
• Art. 3: Juvenile Delinquency

Text

§ 355.1. New hearing; staying, modifying or terminating an order. 1.\nUpon a showing of a substantial change of circumstances, the court may\non its own motion or on motion of the respondent or his parent or person\nresponsible for his care:\n (a) grant a new fact-finding or dispositional hearing; or\n (b) stay execution of, set aside, modify, terminate or vacate any\norder issued in the course of a proceeding under this article.\n * 2. An order issued under section 353.3, may, upon a showing of a\nsubstantial change of circumstances, be set aside, modified, vacated or\nterminated upon motion of the commissioner of social services or the\noffice of children and family services with whom the respondent has been\nplaced.\n (a)(i) For a social services district that only has an approved plan\nto implement programs for juvenile delinquents placed in non-secure\nsettings as part of an approved juvenile justice services close to home\ninitiative pursuant to section four hundred four of the social services\nlaw, beginning on the effective date of that plan, if the district\ndetermines that placement in a limited secure facility is appropriate\nand consistent with the need for protection of the community and the\nneeds and best interests of the respondent placed into its care, the\nsocial services district shall file a petition to transfer the custody\nof the respondent to the office of children and family services, and\nshall provide a copy of such petition to such office, the respondent,\nthe attorney for the respondent and the respondent's parent or legal\nguardian. The court shall render a decision whether the juvenile\ndelinquent should be transferred to the office within seventy-two hours,\nexcluding weekends and public holidays. The family court shall, after\nallowing the office of children and family services and the attorney for\nthe respondent, after notice having been given, an opportunity to be\nheard, grant such a petition only if the court determines, and states in\nits written order, the reasons why a limited secure placement is\nnecessary and consistent with the needs and best interests of the\nrespondent and the need for protection of the community.\n (ii) For a social services district with an approved plan or approved\nplans that cover juvenile delinquents placed in non-secure or in\nnon-secure and in limited secure settings as part of an approved\njuvenile justice services close to home initiative pursuant to section\nfour hundred four of the social services law, beginning on the effective\ndate of the plan, if the district determines that a secure level of\nplacement is appropriate and consistent with the need for protection of\nthe community and the needs and best interests of the respondent placed\ninto its care, the social services district shall file a petition to\ntransfer the custody of the respondent to the office of children and\nfamily services, and shall provide a copy of such petition to such\noffice, the respondent, the attorney for the respondent and the\nrespondent's parent or legal guardian. The court shall render a decision\nwhether the youth should be transferred within seventy-two hours,\nexcluding weekends and public holidays. The family court shall, after\nallowing the office of children and family services and the attorney for\nthe respondent, after notice having been given, an opportunity to be\nheard, grant such a petition only if the court determines, and states in\nits written order, that the youth needs a secure level of placement\nbecause:\n (A) the respondent has been shown to be exceptionally dangerous to\nhimself or herself or to other persons. Exceptionally dangerous behavior\nmay include, but is not limited to, one or more serious intentional\nassaults, sexual assaults or setting fires; or\n (B) the respondent has demonstrated by a pattern of behavior that he\nor she needs a more structured setting and the social services district\nhas considered the appropriateness and availability of a transfer to an\nalternative non-secure or limited secure facility. Such behavior may\ninclude, but is not limited to: disruptions in facility programs;\ncontinuously and maliciously destroying property; or, repeatedly\ncommitting or inciting other youth to commit assaultive or destructive\nacts.\n (iii) The court may order that the respondent be housed in a local\nsecure detention facility on an interim basis pending its final ruling\non the petition filed pursuant to this paragraph.\n (b) The following provisions shall apply if the office of children and\nfamily services files a petition with a family court in a social\nservices district with an approved juvenile justice services close to\nhome initiative pursuant to section four hundred four of the social\nservices law to transfer, within the first ninety days that such plan is\neffective, to such district a respondent placed in the office's care\npursuant to either section 353.3 or 353. 5 of this part:\n (i) Such a petition shall be provided to the respondent, the attorney\nfor the respondent and the respondent's parent or legal guardian. If the\ndistrict only has an approved plan that covers juvenile delinquents\nplaced in non-secure settings, the family court shall grant such a\npetition, without a hearing, unless the attorney for the respondent,\nafter notice, objects to the transfer on the basis that the respondent\nneeds to be placed with the office or the family court determines that\nthere is insufficient information in the petition to grant the transfer\nwithout a hearing. The family court shall grant the petition unless the\ncourt determines, and states in its written order, the reasons why\nplacement with the office is necessary and consistent with the needs and\nbest interests of the respondent and the need for protection of the\ncommunity.\n (ii) If the district has an approved plan or approved plans that cover\njuvenile delinquents placed in non-secure and in limited secure\nsettings, for the first ninety days that the plan that covers juvenile\ndelinquents in limited secure settings is effective, the family court\nshall grant such a petition, without a hearing, unless the attorney for\nthe respondent, after notice, objects to the transfer on the basis that\nthe respondent needs to be placed with the office or the family court\ndetermines that there is insufficient information in the petition to\ngrant the transfer without a hearing. The family court shall grant the\npetition unless the court determines, and states in its written order,\nthe reasons why placement with the office is necessary and consistent\nwith the needs and best interests of the respondent and the need for\nprotection of the community.\n (c) Beginning ninety-one days after the effective date a social\nservices district's plan to implement programs for juvenile justice\nservices close to home initiative pursuant to section four hundred four\nof the social services law, if the office of children and family\nservices files a petition to transfer to such district a respondent\nplaced in the office's care pursuant to either section 353.3 or 353.5 of\nthis part from a family court in such a social services district, the\noffice shall provide a copy of the petition to the social services\ndistrict, the attorney for the respondent and the presentment agency.\n (i) If the district only has an approved plan that covers juvenile\ndelinquents placed in non-secure settings, the family court shall, after\nallowing the social services district, the attorney for the respondent\nand the presentment agency an opportunity to be heard, grant a petition\nfiled pursuant to this subparagraph unless the court determines, and\nstates in its written order, the reasons why a secure or limited secure\nplacement is necessary and consistent with the needs and best interests\nof the respondent and the need for protection of the community.\n (ii) If the district has an approved plan or approved plans that cover\njuvenile delinquents placed in non-secure and limited secure settings,\nbeginning ninety-one days after the effective date of the plan that\ncovers juvenile delinquents placed in limited secure settings, the\nfamily court, after allowing the social services district, the attorney\nfor the respondent and the presentment agency an opportunity to be\nheard, shall grant a petition filed pursuant to this subparagraph,\nunless the court determines, and states in its written order, the\nreasons why a secure placement is necessary and consistent with the\nneeds and best interests of the respondent and the need for protection\nof the community.\n * NB Effective until March 31, 2028\n * 2. An order issued under section 353.3, may, upon a showing of a\nsubstantial change of circumstances, be set aside, modified, vacated or\nterminated upon motion of the commissioner of social services or the\ndivision for youth with whom the respondent has been placed.\n * NB Effective March 31, 2028\n 3. If the court issues a new order of disposition under this section\nthe date such order expires shall not be later than the expiration date\nof the original order.\n