§ 735 — Preliminary procedure; diversion services

New York § 735

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 3: Preliminary Procedure
• Art. 7: Proceedings Concerning Whether a Person Is In Need of Supervision

Text

§ 735. Preliminary procedure; diversion services. (a) Each county and\nany city having a population of one million or more shall offer\ndiversion services as defined in section seven hundred twelve of this\narticle to youth who are at risk of being the subject of a person in\nneed of supervision petition. Such services shall be designed to provide\nan immediate response to families in crisis, to identify and utilize\nappropriate alternatives to placement and to divert youth from being the\nsubject of a petition in family court. Each county and such city shall\ndesignate either the local social services district or the probation\ndepartment as lead agency for the purposes of providing diversion\nservices.\n (b) The designated lead agency shall:\n (i) confer with any person seeking to file a petition, the youth who\nmay be a potential respondent, his or her family, and other interested\npersons, concerning the provision of diversion services before any\npetition may be filed; and\n (ii) diligently attempt to prevent the filing of a petition under this\narticle or, after the petition is filed, to prevent the placement of the\nyouth into foster care; and\n (iii) assess whether the youth would benefit from residential respite\nservices; and\n (iv) assess whether the youth is a sexually exploited child as defined\nin section four hundred forty-seven-a of the social services law and, if\nso, whether such youth should be referred to a safe house in accordance\nwith section seven hundred thirty-nine of this part; and\n (v) determine whether alternatives to placement or services provided\npursuant to this section are appropriate to avoid remand of the youth to\nsuch placement; and\n (vi) determine whether an assessment of the youth for substance use\ndisorder by an office of alcoholism and substance abuse services\ncertified provider is necessary when a person seeking to file a petition\nalleges in such petition that the youth is suffering from a substance\nuse disorder which could make the youth a danger to himself or herself\nor others. Provided, however, that notwithstanding any other provision\nof law to the contrary, the designated lead agency shall not be required\nto pay for all or any portion of the costs of such assessment or for any\nsubstance use disorder or detoxification services, except in cases where\nmedical assistance for needy persons may be used to pay for all or any\nportion of the costs of such assessment or services. The office of\nalcoholism and substance abuse services shall make a list of its\ncertified providers available to the designated lead agency.\n (c) Any person or agency seeking to file a petition pursuant to this\narticle which does not have attached thereto the documentation required\nby subdivision (g) of this section shall be referred by the clerk of the\ncourt to the designated lead agency which shall schedule and hold, on\nreasonable notice to the potential petitioner, the youth and his or her\nparent or other person legally responsible for his or her care, at least\none conference in order to determine the factual circumstances and\ndetermine whether the youth and his or her family should receive\ndiversion services pursuant to this section. Diversion services shall\ninclude clearly documented diligent attempts to provide appropriate\nservices to the youth and his or her family unless it is determined that\nthere is no substantial likelihood that the youth and his or her family\nwill benefit from further diversion attempts. Notwithstanding the\nprovisions of section two hundred sixteen-c of this act, the clerk shall\nnot accept for filing under this part any petition that does not have\nattached thereto the documentation required by subdivision (g) of this\nsection.\n (d) Diversion services shall include documented diligent attempts to\nengage the youth and his or her family in appropriately targeted\ncommunity-based services, but shall not be limited to:\n (i) providing, at the first contact, information on the availability\nof or a referral to services in the geographic area where the youth and\nhis or her family are located that may be of benefit in avoiding the\nneed to file a petition under this article; including the availability,\nfor up to twenty-one days, of a residential respite program, if the\nyouth and his or her parent or other person legally responsible for his\nor her care agree, and the availability of other non-residential crisis\nintervention programs such as family crisis counseling or alternative\ndispute resolution programs or an educational program as defined in\nsection four hundred fifty-eight-l of the social services law.\n (ii) scheduling and holding at least one conference with the youth and\nhis or her family and the person or representatives of the entity\nseeking to file a petition under this article concerning alternatives to\nfiling a petition and services that are available. Diversion services\nshall include clearly documented diligent attempts to provide\nappropriate services to the youth and his or her family before it may be\ndetermined that there is no substantial likelihood that the youth and\nhis or her family will benefit from further attempts.\n (iii) where the entity seeking to file a petition is a school district\nor local educational agency or where the parent or other potential\npetitioner indicates that the proposed petition will include truancy\nand/or conduct in school as an allegation, the designated lead agency\nshall review the steps taken by the school district or local educational\nagency to improve the youth's attendance and/or conduct in school and\nattempt to engage the school district or local educational agency in\nfurther diversion attempts, if it appears from review that such attempts\nwill be beneficial to the youth. Where the school district or local\neducational agency is not the potential petitioner, the designated lead\nagency shall contact such district or agency to resolve the truancy or\nschool behavioral problems of the youth in order to obviate the need to\nfile a petition or, at minimum, to remediate the education-related\nallegations of the proposed petition.\n (e) The designated lead agency shall maintain a written record with\nrespect to each youth and his or her family for whom it considers\nproviding or provides diversion services pursuant to this section. The\nrecord shall be made available to the court at or prior to the initial\nappearance of the youth in any proceeding initiated pursuant to this\narticle.\n (f) Efforts to prevent the filing of a petition pursuant to this\nsection may extend until the designated lead agency determines that\nthere is no substantial likelihood that the youth and his or her family\nwill benefit from further attempts. Efforts at diversion pursuant to\nthis section may continue after the filing of a petition where the\ndesignated lead agency determines that the youth and his or her family\nwill benefit from further attempts to prevent the youth from entering\nfoster care.\n (g) (i) The designated lead agency shall promptly give written notice\nto the potential petitioner whenever attempts to prevent the filing of a\npetition have terminated, and shall indicate in such notice whether\nefforts were successful. The notice shall also detail the diligent\nattempts made to divert the case if a determination has been made that\nthere is no substantial likelihood that the youth will benefit from\nfurther attempts. No persons in need of supervision petition may be\nfiled pursuant to this article during the period the designated lead\nagency is providing diversion services. A finding by the designated lead\nagency that the case has been successfully diverted shall constitute\npresumptive evidence that the underlying allegations have been\nsuccessfully resolved in any petition based upon the same factual\nallegations. No petition may be filed pursuant to this article by the\nparent or other person legally responsible for the youth where diversion\nservices have been terminated because of the failure of the parent or\nother person legally responsible for the youth to consent to or actively\nparticipate.\n (ii) The clerk of the court shall accept a petition for filing only if\nit has attached thereto the following:\n (A) if the potential petitioner is the parent or other person legally\nresponsible for the youth, a notice from the designated lead agency\nindicating there is no bar to the filing of the petition as the\npotential petitioner consented to and actively participated in diversion\nservices; and\n (B) a notice from the designated lead agency stating that it has\nterminated diversion services because it has determined that there is no\nsubstantial likelihood that the youth and his or her family will benefit\nfrom further attempts, and that the case has not been successfully\ndiverted; and\n (C) where the proposed petition contains allegations of truancy and/or\nschool misbehavior, whether or not the school district or local\neducational agency is the proposed petitioner, a notice from the\ndesignated lead agency regarding the diversion efforts undertaken and/or\nservices provided by the designated lead agency and/or by the school\ndistrict or local educational agency to the youth and the grounds for\nconcluding that the education-related allegations could not be resolved\nabsent the filing of a petition under this article.\n (h) No statement made to the designated lead agency or to any agency\nor organization to which the potential respondent has been referred,\nprior to the filing of the petition, or if the petition has been filed,\nprior to the time the respondent has been notified that attempts at\ndiversion will not be made or have been terminated, or prior to the\ncommencement of a fact-finding hearing if attempts at diversion have not\nterminated previously, may be admitted into evidence at a fact-finding\nhearing or, if the proceeding is transferred to a criminal court, at any\ntime prior to a conviction.\n