§ 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\nafter hearing and before filing of petition in custody cases. (a) If a\nchild in custody is brought before a judge of the family court before a\npetition is filed, the judge shall hold a hearing for the purpose of\nmaking a preliminary determination of whether the court appears to have\njurisdiction over the child. At the commencement of the hearing, the\njudge shall advise the child of his or her right to remain silent, his\nor her right to be represented by counsel of his or her own choosing,\nand of the right to have an attorney assigned in accord with part four\nof article two of this act. The judge must also allow the child a\nreasonable time to send for his or her parents or other person or\npersons legally responsible for his or her care, and for counsel, and\nadjourn the hearing for that purpose.\n (b) After hearing, the judge shall order the release of the child to\nthe custody of his parent or other person legally responsible for his\ncare if the court does not appear to have jurisdiction.\n (c) An order of release under this section may, but need not, be\nconditioned upon the giving of a recognizance in accord with sections\nseven hundred twenty-four (b) (i).\n (d) Upon a finding of facts and reasons which support a\npre-dispositional placement order pursuant to this section, the court\nshall also determine and state in any order directing pre-dispositional\nplacement:\n (i) that there is no substantial likelihood that the youth and his or\nher family will continue to benefit from diversion services and that all\navailable alternatives to such placement have been exhausted; and\n (ii) whether continuation of the child in the child's home would be\ncontrary to the best interests of the child based upon, and limited to,\nthe facts and circumstances available to the court at the time of the\nhearing held in accordance with this section; and\n (iii) where appropriate, whether reasonable efforts were made prior to\nthe date of the court hearing that resulted in the detention order, to\nprevent or eliminate the need for removal of the child from his or her\nhome or, if the child had been removed from his or her home prior to the\ncourt appearance pursuant to this section, where appropriate, whether\nreasonable efforts were made to make it possible for the child to safely\nreturn home; and\n (iv) whether the setting of the pre-dispositional placement takes into\naccount the proximity to the community in which the person alleged to be\nor adjudicated as a person in need of supervision lives with such\nperson's parents or to which such person will be discharged, and the\nexisting educational setting of such person and the proximity of such\nsetting to the location of the detention setting.\n