2006 New York Code - Transfer Of Certain Juvenile Delinquents.

 
    §  353.4.  Transfer  of  certain  juvenile  delinquents.  1. If at the
  conclusion of the dispositional hearing and in accordance  with  section
  352.2  the  court finds that the respondent has a mental illness, mental
  retardation or developmental disability, as defined in section  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 section 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 section 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 section 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 section 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 section 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 section 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 section 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 section 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 section shall be entered except upon clear and convincing  evidence
  which  shall  include  the  testimony  of  two  examining  physicians as
  provided in section two hundred fifty-one.
    5. If the respondent has been in detention  pending  disposition,  the
  initial period of placement ordered under this section 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.