Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Pursuant to section 398 (3-a) and
404 of the Social Services Law, a youth
placed pursuant to a delinquency adjudication under article 3 of the Family
Court Act with a local social services district may be conditionally released
from a facility or program to aftercare if:
(1) it is consistent with the needs and best
interests of the youth;
(2)
suitable care and supervision can be provided; and
(3) there is a reasonable probability the
youth can be conditionally released without endangering public
safety.
(b)
Limitation on granting conditional release.
Any youth placed pursuant to a delinquency adjudication
who is absent from a facility or program without consent of the director of
such facility or program shall not be granted conditional release while absent
without consent solely by reason of such absence. For purposes of this section,
absence without consent occurs when a youth disappears, runs away or is
otherwise absent without the consent of the person(s) or facility in whose care
the youth has been placed.
(c) A youth placed pursuant to a delinquency
adjudication shall be conditionally released to a parent(s), relative or
guardian, unless in the opinion of the local social services district there is
no suitable parent, relative or guardian to whom such youth can be released. In
such cases, the local social services district may conditionally release the
youth to any other suitable person; provided that when such person has no legal
relationship with such youth, the district shall advise the person of the
procedures for obtaining custody or guardianship of the youth.
(d) Where a youth placed pursuant to a
delinquency adjudication is over the age of 18 at the time of conditional
release, and there is no suitable parent, relative or guardian to whom such
youth can be released, the local social services district may conditionally
release the youth to either a suitable person or to his or her own
recognizance, provided there is at least one adult whom the local social
services district has identified as primary support for such youth, or a
program, such as a transitional independent living support program, which will
provide additional supports and services for the youth.
(e) A conditionally released youth placed
pursuant to a delinquency adjudication shall continue to be the responsibility
of the local social services district for the period provided in the order of
placement, including under such circumstances for a youth whose release
resource dies, is incarcerated or becomes otherwise incapacitated.
Additionally, the local social services district may provide clothing, services
and other necessities for any conditionally released juvenile delinquent, as
may be required including medical care and services not provided to such
juvenile delinquent as medical assistance for needy persons pursuant to title
11 of article 5 of the Social Services Law.
(f)
Conditions of release.
(1) Prior to conditional release, such youth
must agree, in writing, to follow all conditions established for his or her
release and acknowledge that a violation of the conditions can result in a
modification of the terms and conditions or a revocation of his or her
release.
(2) The conditions for
such youth's release shall be individualized and consistent with the youth's
needs and abilities and may include, but are not necessarily limited to:
(i) keeping a daily schedule, which may
include a reasonable curfew, set by the youth's aftercare worker or case
manager;
(ii) participating in
programs and services as required;
(iii) enrolling in or attending a school or
education program leading to a high school diploma if the youth is subject to
article 65 of the Education Law or elects to participate in an education
program leading to a high school diploma. If such release occurs during the
summer recess, enrollment or attendance must be upon the commencement of the
next school term;
(iv) seeking
employment or enrolling in and attending a vocational program following release
when the youth is not subject to article 65 of the Education Law and does not
elect to participate in an educational program leading to a high school diploma
or college education;
(v)
refraining from activities prohibited in the conditions of release, including
associating with a person(s) whose influence would have a detrimental
effect;
(vi) abstaining from the
use of alcoholic beverages, controlled substances, habit forming drugs not
lawfully prescribed, or any other harmful or dangerous substance;
(vii) reporting to the youth's case worker,
as directed;
(viii) not operating a
motor vehicle without a license; and
(ix) adhering to any other requirements
deemed appropriate by the youth's aftercare worker or case manager.
(3) In addition to the conditions
of release, the youth shall endorse an attestation to a statement written in
language accessible to such youth, which indicates:
(i) that the youth understands that they
remain under the custody of the local social services district; and
(ii) that violation of the terms and
conditions of release may lead to modification of the terms or revocation of
the conditional release.
(g) Prior to release, such youth and parent,
relative, guardian or other suitable person shall be oriented to the conditions
the youth must follow, the structure of the conditional release program where
relevant, and the responsibilities of the staff working with the youth and
family, as well as written documentation of the conditions of release and
verbal notice that a violation of any condition may result in revocation of the
release. A copy of all materials shall be mailed to the parent(s), relative,
guardian or other suitable person to whom the youth is released, as well as
provided in person where possible.
(h)
Modification of terms and
conditions of release.
(1) Terms and
conditions of release may be modified, as necessary.
(2) The youth's aftercare worker shall
document the reasons why the modification is necessary, including specific new
conditions to be added or deleted or conditions to be amended.
(3) All attempts by the program or staff to
support the success of the conditional release and the application of graduated
sanctions to address concerns in the community shall be documented.
(4) Any proposed modification to the
conditions of release must be reviewed and approved by the aftercare worker
supervisor in consultation with the local social services district case
manager.
(5) The caseworker shall
confer with the youth and parent/guardian or release resource before modifying
the conditions of release. If a youth is absent without consent and cannot be
located, the caseworker may modify the conditions of release without conferring
with the youth.
(6) All
modifications of conditions of release must be in writing and signed by the
youth and their parent, relative, guardian or other suitable person, where
applicable, in the same manner as the original conditions of release.
(i)
Revocation of release,
grounds.
(1) Violations of conditions.
The conditional release of a youth placed pursuant to a delinquency
adjudication may be revoked when such youth has violated one or more of the
terms and conditions of the conditional release.
(2) The conditional release may be revoked if
there is a change of circumstances resulting in a determination that revocation
of such youth's release is consistent with promoting the welfare of the youth
and the need to protect the community.
(j)
Revocation of release,
documentation.
(1) The youth's
aftercare worker shall prepare a written recommendation to revoke the youth's
conditional release. The recommendation shall specify the factual circumstances
requiring revocation of the release, including:
(i) the specific conditions violated and the
facts that demonstrate that the conditions were violated; and
(ii) the use of graduated response by the
case worker or aftercare staff to avoid revocation where appropriate;
or
(iii) facts which demonstrate a
change of circumstances resulting in the determination that revocation is
consistent with promoting the welfare of the youth and the need to protect the
community.
(2) The
written recommendation shall be reviewed by the youth's local social services
district case manager for final approval.
(k)
Revocation of release
process.
(1) The local social services
district must provide the youth, and for youth less than 18 years of age the
youth's parents or guardians, with notice in a manner set forth by OCFS at
least 5 days prior to the hearing, of the reasons for revocation and an
opportunity for the youth to be heard, including the rights set forth in
paragraph (3) of this subdivision.
(2) The youth may be permitted to remain in
the community until his or her opportunity to be heard occurs unless there are
reasonable grounds to believe the youth will not appear for any mandatory
appearances.
(i) A social services official
of a local social services district with an approved close to home plan may
issue a warrant authorizing a peace officer acting pursuant to his or her
special duties or a police officer to apprehend the youth placed pursuant to a
delinquency adjudication who has been determined to have violated the
conditions of release and return such youth to an authorized agency, or for
limited secure juvenile delinquents to a detention facility. An employee of a
local social services district with an approved close to home plan may be
designated, without a warrant, to apprehend a youth who has violated his or her
conditions of release.
(ii) All
other local social services districts, the local social services commissioner
or an authorized representative may petition the family court having
jurisdiction over the youth placed pursuant to a delinquency adjudication for a
warrant for the return of such youth to placement pending the outcome of the
youth's opportunity to be heard.
(3) Revocation hearing.
(i) If the youth has been returned to custody
pending the opportunity to be heard, the hearing must take place within 20 days
from the date the youth was taken into custody; if the youth has remained in
the community, the hearing must take place within 20 days from the date the
youth was provided notice of the hearing.
(ii) Each party has the right to be
represented by counsel at the hearing; to examine and present documentary
evidence; to testify; to produce, compel the attendance of, and examine
witnesses; and to cross-examine witnesses.
(iii) The official presiding over the hearing
shall be an attorney who is not an employee of the local social services
district or the authorized agency responsible for such child and who shall be
authorized by the local social services district to make a determination
regarding the child's release. The hearing officer shall have all the powers
conferred by law to acquire attendance of witnesses and the production of books
and records and to administer oaths and to take testimony.
(iv) A verbatim record of the hearing shall
be made.
(v) The record of the
hearing shall be confidential, but it may be examined by either party,
including the child, their parent, relative, guardian or other suitable person
to whom they were released, or their designated legal representative.
(vi) The hearing officer shall issue a
written decision, within four days following the hearing, determining whether
substantial evidence supports a finding that the youth has violated one or more
of the terms and conditions of the conditional release or there has been a
change of circumstances such that revocation of release is consistent with
promoting the welfare of the youth and the need to protect the community. If
the hearing officer decides that substantial evidence supports such a finding,
the hearing officer shall consider whether revocation of the youth's
conditional release is in the youth's best interest and is necessary to protect
the community. If not, the hearing officer must order the youth's continuation
on aftercare, with or without modification of the conditions of release, as the
hearing officer deems appropriate. If substantial evidence does not support
such a finding, the hearing officer must order the youth be continued on
aftercare without modification of the conditions of release.
(l)
Voluntary
return.
A youth placed pursuant to a delinquency adjudication on
conditional release status who has received a notice of a revocation may waive
the right to be heard and voluntarily return to the placement. A youth under
the age of 18 years may not waive the right to be heard without first
consulting with his or her legal representative. Any waiver of the right to be
heard must be signed by the youth and the youth must fully understand the
significance of the act.
