S T A T E O F N E W Y O R K
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10727
I N A S S E M B L Y
July 1, 2020
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Introduced by COMMITTEE ON RULES -- (at request of M. of A. Jaffee) --
read once and referred to the Committee on Children and Families
AN ACT to amend the family court act, the social services law and the
executive law, in relation to raising the lower age of juvenile delin-
quency jurisdiction from age seven to age twelve and to establish
differential response programs for children under the age of twelve
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 301.2 of the family court act, as
amended by section 56 of part WWW of chapter 59 of the laws of 2017, is
amended to read as follows:
1. "Juvenile delinquent" means a person [over seven and less than
sixteen years of age, or commencing on October first, two thousand eigh-
teen a person over seven and less than seventeen years of age, and
commencing October first, two thousand nineteen a person over seven] AT
LEAST TWELVE and less than eighteen years of age, who, having committed
an act that would constitute a crime, or a violation, where such
violation is alleged to have occurred in the same transaction or occur-
rence of the alleged criminal act, if committed by an adult, (a) is not
criminally responsible for such conduct by reason of infancy, or (b) is
the defendant in an action ordered removed from a criminal court to the
family court pursuant to article seven hundred twenty-five of the crimi-
nal procedure law.
§ 2. Subdivision 8 of section 301.2 of the family court act, as
amended by section 57 of part WWW of chapter 59 of the laws of 2017, is
amended to read as follows:
8. "Designated felony act" means an act which, if done by an adult,
would be a crime: (i) defined in sections 125.27 (murder in the first
degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the
first degree); or 150.20 (arson in the first degree) of the penal law
committed by a person thirteen, fourteen, fifteen, [or] sixteen, or
[commencing October first, two thousand nineteen,] seventeen years of
age; or such conduct committed as a sexually motivated felony, where
authorized pursuant to section 130.91 of the penal law; (ii) defined in
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15119-04-0
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sections 120.10 (assault in the first degree); 125.20 (manslaughter in
the first degree); 130.35 (rape in the first degree); 130.50 (criminal
sexual act in the first degree); 130.70 (aggravated sexual abuse in the
first degree); 135.20 (kidnapping in the second degree) but only where
the abduction involved the use or threat of use of deadly physical
force; 150.15 (arson in the second degree) or 160.15 (robbery in the
first degree) of the penal law committed by a person thirteen, fourteen,
fifteen, [or] sixteen, or[, commencing October first, two thousand nine-
teen,] seventeen years of age; or such conduct committed as a sexually
motivated felony, where authorized pursuant to section 130.91 of the
penal law; (iii) defined in the penal law as an attempt to commit murder
in the first or second degree or kidnapping in the first degree commit-
ted by a person thirteen, fourteen, fifteen, [or] sixteen, or [commenc-
ing October first, two thousand nineteen,] seventeen years of age; or
such conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (iv) defined in section
140.30 (burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); subdivision two of section 160.10
(robbery in the second degree) of the penal law; or section 265.03 of
the penal law, where such machine gun or such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of the penal law committed by a person fourteen or
fifteen years of age; or such conduct committed as a sexually motivated
felony, where authorized pursuant to section 130.91 of the penal law;
(v) defined in section 120.05 (assault in the second degree) or 160.10
(robbery in the second degree) of the penal law committed by a person
fourteen, fifteen, [or] sixteen or[, commencing October first, two thou-
sand nineteen,] seventeen years of age but only where there has been a
prior finding by a court that such person has previously committed an
act which, if committed by an adult, would be the crime of assault in
the second degree, robbery in the second degree or any designated felony
act specified in paragraph (i), (ii), or (iii) of this subdivision
regardless of the age of such person at the time of the commission of
the prior act; (vi) other than a misdemeanor committed by a person at
least [seven but less than seventeen years of age, and commencing Octo-
ber first, two thousand nineteen, a person at least seven] TWELVE but
less than eighteen years of age, but only where there [has] HAVE been
two prior findings by the court that such person has committed a prior
felony.
§ 3. Subdivision 3 of section 304.1 of the family court act, as
amended by section 59 of part WWW of chapter 59 of the laws of 2017, is
amended to read as follows:
3. The detention of a child under [ten] THIRTEEN years of age in a
secure detention facility shall not be directed under any of the
provisions of this article.
§ 4. Paragraph (a) of subdivision 1 of section 306.1 of the family
court act, as amended by chapter 645 of the laws of 1996, is amended to
read as follows:
(a) the child is [eleven] AT LEAST TWELVE years of age [or older] and
the crime which is the subject of the arrest or which is charged in the
petition constitutes a class A or B felony; or
§ 5. Subdivision 12 of section 308.1 of the family court act, as
added by chapter 920 of the laws of 1982, is amended to read as follows:
12. The probation service shall certify to the division of criminal
justice services and to the appropriate police department or law
enforcement agency whenever it adjusts a case in which the potential
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respondent's fingerprints were taken pursuant to section 306.1 in any
manner other than the filing of a petition for juvenile delinquency for
an act which, if committed by an adult, would constitute a felony,
provided, however, in the case of a child [eleven or] twelve years of
age, such certification shall be made only if the act would constitute a
class A or B felony.
§ 6. Paragraph (f) of subdivision 2 of section 353.2 of the family
court act, as amended by chapter 124 of the laws of 1993, is amended to
read as follows:
(f) make restitution or perform services for the public good pursuant
to section 353.6[, provided the respondent is over ten years of age];
§ 7. The opening paragraph of subdivision 1 of section 353.6 of the
family court act, as amended by chapter 877 of the laws of 1983, is
amended to read as follows:
At the conclusion of the dispositional hearing [in cases involving
respondents over ten years of age] the court may:
§ 8. Subdivisions 1, 2, 6 and 7 of section 354.1 of the family court
act, subdivision 1 as added by chapter 920 of the laws of 1982 and
subdivisions 2, 6 and 7 as amended by chapter 645 of the laws of 1996,
are amended to read as follows:
1. If a person whose fingerprints, palmprints or photographs were
taken pursuant to section 306.1 or was initially fingerprinted as a
juvenile offender and the action is subsequently removed to a family
court pursuant to article seven hundred twenty-five of the criminal
procedure law is adjudicated to be a juvenile delinquent for a felony,
the family court shall forward or cause to be forwarded to the division
of criminal justice services notification of such adjudication and such
related information as may be required by such division, provided,
however, in the case of a person [eleven or] twelve years of age such
notification shall be provided only if the act upon which the adjudi-
cation is based would constitute a class A or B felony.
2. If a person whose fingerprints, palmprints or photographs were
taken pursuant to section 306.1 or was initially fingerprinted as a
juvenile offender and the action is subsequently removed to family court
pursuant to article seven hundred twenty-five of the criminal procedure
law has had all petitions disposed of by the family court in any manner
other than an adjudication of juvenile delinquency for a felony, but in
the case of acts committed when such person was [eleven or] twelve years
of age which would constitute a class A or B felony only, all such fing-
erprints, palmprints, photographs, and copies thereof, and all informa-
tion relating to such allegations obtained by the division of criminal
justice services pursuant to section 306.1 shall be destroyed forthwith.
The clerk of the court shall notify the commissioner of the division of
criminal justice services and the heads of all police departments and
law enforcement agencies having copies of such records, who shall
destroy such records without unnecessary delay.
6. If a person fingerprinted pursuant to section 306.1 and subsequent-
ly adjudicated a juvenile delinquent for a felony, but in the case of
acts committed when such a person was [eleven or] twelve years of age
which would constitute a class A or B felony only, is subsequently
convicted of a crime, all fingerprints and related information obtained
by the division of criminal justice services pursuant to such section
and not destroyed pursuant to subdivisions two, five and seven or subdi-
vision twelve of section 308.1 shall become part of such division's
permanent adult criminal record for that person, notwithstanding section
381.2 or 381.3.
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7. When a person fingerprinted pursuant to section 306.1 and subse-
quently adjudicated a juvenile delinquent for a felony, but in the case
of acts committed when such person was [eleven or] twelve years of age
which would constitute a class A or B felony only, reaches the age of
twenty-one, or has been discharged from placement under this act for at
least three years, whichever occurs later, and has no criminal
convictions or pending criminal actions which ultimately terminate in a
criminal conviction, all fingerprints, palmprints, photographs, and
related information and copies thereof obtained pursuant to section
306.1 in the possession of the division of criminal justice services,
any police department, law enforcement agency or any other agency shall
be destroyed forthwith. The division of criminal justice services shall
notify the agency or agencies which forwarded fingerprints to such divi-
sion pursuant to section 306.1 of their obligation to destroy those
records in their possession. In the case of a pending criminal action
which does not terminate in a criminal conviction, such records shall be
destroyed forthwith upon such determination.
§ 9. Paragraph (a) of subdivision 1 of section 409-a of the social
services law, as amended by chapter 87 of the laws of 1993, subparagraph
(i) as amended by chapter 342 of the laws of 2010, and subparagraph (ii)
as amended by section 22 of part C of chapter 83 of the laws of 2002, is
amended to read as follows:
(a) A social services official shall provide preventive services to a
child and his or her family, in accordance with the family's service
plan as required by section four hundred nine-e of this chapter and the
social services district's child welfare services plan submitted and
approved pursuant to section four hundred nine-d of this chapter, upon a
finding by such official that (i) the child will be placed, returned to
or continued in foster care unless such services are provided and that
it is reasonable to believe that by providing such services the child
will be able to remain with or be returned to his or her family, and for
a former foster care youth under the age of twenty-one who was previous-
ly placed in the care and custody or custody and guardianship of the
local commissioner of social services or other officer, board or depart-
ment authorized to receive children as public charges where it is
reasonable to believe that by providing such services the former foster
care youth will avoid a return to foster care or (ii) the child is the
subject of a petition under article seven of the family court act[, or
has been determined by the assessment service established pursuant to
section two hundred forty-three-a of the executive law,] or by the
probation service [where no such assessment service has been desig-
nated], to be at risk of being the subject of such a petition, and the
social services official determines that the child is at risk of place-
ment into foster care OR (III) THE CHILD IS UNDER THE AGE OF TWELVE, AND
THEIR BEHAVIOR BUT FOR THEIR AGE WOULD BRING THEM WITHIN THE JURISDIC-
TION OF THE FAMILY COURT PURSUANT TO ARTICLE THREE OF THE FAMILY COURT
ACT, AND THE SOCIAL SERVICES OFFICIAL DETERMINES THAT THE CHILD IS AT
RISK OF PLACEMENT INTO FOSTER CARE. Such finding shall be entered in the
child's uniform case record established and maintained pursuant to
section four hundred nine-f of this [chapter] ARTICLE. The commissioner
shall promulgate regulations to assist social services officials in
making determinations of eligibility for mandated preventive services
pursuant to this subparagraph.
§ 10. Article 6 of the social services law is amended by adding a new
title 12-A to read as follows:
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TITLE 12-A
DIFFERENTIAL RESPONSE PROGRAMS FOR CHILDREN UNDER TWELVE
SECTION 458-O. DIFFERENTIAL RESPONSE PROGRAMS FOR CHILDREN UNDER TWELVE.
§ 458-O. DIFFERENTIAL RESPONSE PROGRAMS FOR CHILDREN UNDER TWELVE. 1.
EACH LOCAL SOCIAL SERVICES DISTRICT, UPON THE APPROVAL OF THE OFFICE OF
CHILDREN AND FAMILY SERVICES, SHALL ESTABLISH A PROGRAM THAT IMPLEMENTS
DIFFERENTIAL RESPONSES TO PROVIDE SERVICES TO CHILDREN UNDER TWELVE
YEARS OF AGE WHOSE BEHAVIOR, BUT FOR THEIR AGE, WOULD BRING THEM WITHIN
THE JURISDICTION OF THE FAMILY COURT PURSUANT TO ARTICLE THREE OF THE
FAMILY COURT ACT. SUCH PROGRAMS SHALL ESTABLISH AND UTILIZE APPROPRIATE
ASSESSMENTS AND SERVICES FOR YOUTH, IN ORDER TO HELP REDUCE FUTURE
INTERACTION WITH THE JUVENILE JUSTICE AND/OR CHILD WELFARE SYSTEMS. SUCH
ASSESSMENTS SHALL BE USED TO DETERMINE WHAT, IF ANY, SERVICES ARE NEED-
ED, AND SUCH SERVICES SHALL UTILIZE THE LEAST RESTRICTIVE INTERVENTION
PROTOCOLS AVAILABLE. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE
CONTRARY, THE PROVISIONS OF THIS SECTION SHALL APPLY ONLY TO THOSE CASES
INVOLVING CHILDREN UNDER TWELVE YEARS OF AGE WHOSE BEHAVIOR BUT FOR
THEIR AGE WOULD BRING THEM WITHIN THE JURISDICTION OF THE FAMILY COURT
PURSUANT TO ARTICLE THREE OF THE FAMILY COURT ACT.
2. TO ESTABLISH A DIFFERENTIAL RESPONSE PROGRAM, EACH LOCAL SOCIAL
SERVICES DISTRICT, AS PART OF THEIR DISTRICT-WIDE CHILD WELFARE SERVICES
PLAN, AS DEFINED IN SECTION FOUR HUNDRED NINE-D OF THIS ARTICLE, SHALL
INCLUDE A PLAN TO SERVE THE YOUTH DESCRIBED IN SUBDIVISION ONE OF THIS
SECTION WHILE UTILIZING CERTAIN CRITERIA TO BE PROMULGATED IN REGULATION
BY THE OFFICE OF CHILDREN AND FAMILY SERVICES INCLUDING BUT NOT LIMITED
TO THE FOLLOWING:
(A) THE TYPES OF ASSESSMENT TO DETERMINE WHETHER SERVICES ARE NECES-
SARY, SERVICES AND INTERVENTIONS TO BE PROVIDED TO CHILDREN AND FAMILIES
INCLUDED IN THE DIFFERENTIAL RESPONSE PROGRAM FOR SUCH CHILDREN AND A
DESCRIPTION OF HOW THE SERVICES WILL BE OFFERED. SUCH SERVICES SHALL
INCLUDE, BUT NOT BE LIMITED TO, THOSE SERVICES SET FORTH IN SECTION FOUR
HUNDRED NINE-A OF THIS ARTICLE AND SECTION FOUR HUNDRED FIFTY-EIGHT-M OF
THIS ARTICLE;
(B) A DESCRIPTION OF THE PROCESS TO BE FOLLOWED FOR PLANNING AND MONI-
TORING THE SERVICES PROVIDED UNDER THE DIFFERENTIAL RESPONSES;
(C) A DESCRIPTION OF HOW THE DIFFERENTIAL RESPONSE PROGRAM WILL
ENHANCE THE ABILITY OF THE DISTRICT TO REDUCE FUTURE INTERACTIONS WITH
THE JUVENILE JUSTICE AND CHILD WELFARE SYSTEMS, ENSURE THE SAFETY AND
WELL-BEING OF SUCH CHILDREN, AND WAYS TO ENSURE SUCH PROGRAM ADDRESSES
ADVERSE IMPACTS ON MINORITY COMMUNITIES;
(D) A DESCRIPTION OF THE TRAINING THAT WILL BE PROVIDED TO DISTRICT
AND ANY NON-DISTRICT STAFF TO BE USED IN THE DIFFERENTIAL RESPONSE
PROGRAM INCLUDING, BUT NOT LIMITED TO, A DESCRIPTION OF THE TRAINING SET
FORTH IN SECTION EIGHT HUNDRED FORTY OF THE EXECUTIVE LAW FOR POLICE
OFFICERS WHOSE MAIN RESPONSIBILITIES ARE JUVENILES AND THE LAWS PERTAIN-
ING THERETO; AND
(E) A DESCRIPTION OF ANY ADDITIONAL FUNDING THAT MAY BE UTILIZED TO
ENHANCE THE DIFFERENTIAL RESPONSE PROGRAM.
3. (A) ALL RECORDS CREATED AS PART OF THE DIFFERENTIAL RESPONSE
PROGRAM FOR CHILDREN DESCRIBED IN SUBDIVISION ONE OF THIS SECTION SHALL
INCLUDE, BUT NOT BE LIMITED TO, THE INITIAL AND ANY SUBSEQUENT REASONS
WHY A DIFFERENTIAL RESPONSE IS RECOMMENDED FOR A CHILD, DOCUMENTATION OF
ALL SERVICES OFFERED AND ACCEPTED BY SUCH CHILD AND THEIR FAMILY, THE
PLAN FOR SUPPORTIVE SERVICES FOR THE CHILD AND THEIR FAMILY, AND ALL
EVALUATIONS AND ASSESSMENTS OF THE CHILD'S PROGRESS.
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(B) RECORDS CREATED UNDER THE DIFFERENTIAL RESPONSE PROGRAM FOR THE
CHILDREN DESCRIBED IN SUBDIVISION ONE OF THIS SECTION SHALL BE MAIN-
TAINED FOR FIVE YEARS AFTER A CHILD IS REFERRED TO A LOCAL SOCIAL
SERVICES DISTRICT FOR INTERVENTION AS DESCRIBED IN THIS SECTION OR UNTIL
THE CHILD REACHES THE AGE OF TWELVE, WHICHEVER IS SOONER.
(C) ALL REPORTS ASSIGNED TO, AND RECORDS CREATED UNDER, THE DIFFEREN-
TIAL RESPONSE PROGRAM, INCLUDING BUT NOT LIMITED TO REPORTS MADE OR
WRITTEN AS WELL AS ANY OTHER INFORMATION OBTAINED OR PHOTOGRAPHS TAKEN
CONCERNING SUCH REPORTS OR RECORDS SHALL BE CONFIDENTIAL, SHALL BE MADE
AVAILABLE ONLY TO AN ENTITY LISTED BELOW WHICH HAS BEEN INVOLVED IN THE
PARTICULAR YOUTH'S SERVICE DELIVERY, AND SHALL NOT BE REDISCLOSED,
EXCEPT AS AUTHORIZED PURSUANT TO SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
UTILIZING NON-IDENTIFYING AGGREGATED INFORMATION. SUCH ENTITIES SHALL
INCLUDE:
(I) STAFF OF THE OFFICE OF CHILDREN AND FAMILY SERVICES AND PERSONS
DESIGNATED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES;
(II) THE SOCIAL SERVICES DISTRICT RESPONSIBLE FOR THE DIFFERENTIAL
RESPONSE PROGRAM FOR CHILDREN DESCRIBED IN SUBDIVISION ONE OF THIS
SECTION;
(III) A COMMUNITY-BASED AGENCY THAT HAS A CONTRACT WITH THE SOCIAL
SERVICES DISTRICT TO CARRY OUT ACTIVITIES FOR THE DISTRICT UNDER THE
DIFFERENTIAL RESPONSE PROGRAM;
(IV) A PROVIDER OF SERVICES UNDER THE DIFFERENTIAL RESPONSE PROGRAM;
(V) THE CHILD, OR TO THEIR PARENT OR LEGAL GUARDIAN, AND THE ATTORNEY
FOR THE CHILD; AND
(VI) THE OFFICE OF CHILDREN AND FAMILY SERVICES AND SOCIAL SERVICES
DISTRICTS FOR THE SOLE PURPOSE OF PREPARING THE REPORT REQUIRED PURSUANT
TO SUBDIVISION FIVE OF THIS SECTION.
4. EXPENDITURES BY A SOCIAL SERVICES DISTRICT PURSUANT TO THIS SECTION
SHALL BE REIMBURSABLE FROM THE ANNUAL APPROPRIATIONS AVAILABLE FOR
SOCIAL SERVICES DISTRICT EXPENDITURES FOR CHILD WELFARE SERVICES WHICH
SHALL INCLUDE, BUT NOT BE LIMITED TO, PREVENTIVE SERVICES PROVIDED
PURSUANT TO SECTION FOUR HUNDRED NINE-A OF THIS ARTICLE, FUNDING FOR
FAMILY SUPPORT SERVICES PROGRAMS AS SET FORTH IN SECTION FOUR HUNDRED
FIFTY-EIGHT-N OF THIS ARTICLE AND SUPERVISION AND TREATMENT SERVICES FOR
JUVENILES PROGRAM AS SET FORTH IN SECTION FIVE HUNDRED TWENTY-NINE-B OF
THE EXECUTIVE LAW. NOTHING SHALL PRECLUDE A SOCIAL SERVICES DISTRICT
FROM SEEKING PRIVATE FUNDS FOR SUPPORT OF THEIR DIFFERENTIAL RESPONSE
PROGRAMS.
5. THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL REPORT ON THE
DIFFERENTIAL RESPONSE PROGRAMS ESTABLISHED PURSUANT TO THIS SECTION,
INCLUDING THE LOCAL SOCIAL SERVICES DISTRICT'S EFFORTS TO REDUCE FUTURE
INTERACTIONS WITH THE JUVENILE JUSTICE AND CHILD WELFARE SYSTEMS, HOW
THE LOCAL SOCIAL DISTRICTS ARE ENSURING THE SAFETY AND WELL-BEING OF
SUCH CHILDREN, AND HOW THE PROGRAM IS ADDRESSING ADVERSE IMPACTS ON
MINORITY COMMUNITIES, ON AN ANNUAL BASIS BEGINNING ONE YEAR FROM THE
START OF EVERY LOCAL SOCIAL SERVICES DISTRICT'S DIFFERENTIAL RESPONSE
PROGRAM.
§ 11. Subdivision 1 of section 458-m of the social services law, as
added by section 18-b of part K of chapter 56 of the laws of 2019, is
amended to read as follows:
1. As used in this title, the term "family support services programs"
shall mean a program established pursuant to this title to provide
community-based supportive services to children and families with the
goal of (I) preventing a child from being adjudicated a person in need
of supervision and help prevent the out of home placements of such youth
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or (II) preventing a petition from being filed under article seven of
the family court act, OR (III) TO HELP REDUCE FUTURE INTERACTION WITH
THE JUVENILE JUSTICE AND/OR CHILD WELFARE SYSTEM FOR CHILDREN UNDER
TWELVE YEARS OF AGE WHOSE BEHAVIOR BUT FOR THEIR AGE WOULD BRING THEM
WITHIN THE JURISDICTION OF THE FAMILY COURT PURSUANT TO ARTICLE THREE OF
THE FAMILY COURT ACT.
§ 12. Paragraph (j) of subdivision 1 of section 840 of the executive
law, as amended by chapter 617 of the laws of 1990, is amended to read
as follows:
(j) (1) Development, maintenance and dissemination of written policies
and procedures pursuant to title six of article six of the social
services law and applicable provisions of article ten of the family
court act, regarding the mandatory reporting of child abuse or neglect,
reporting procedures and obligations of persons required to report,
provisions for taking a child into protective custody, mandatory report-
ing of deaths, immunity from liability, penalties for failure to report
and obligations for the provision of services and procedures necessary
to safeguard the life or health of the child; (2) establishment and
implementation on an ongoing basis, of a training program for all
current and new police officers regarding the policies and procedures
established pursuant to this paragraph; and (3) establishment of a
training program for police officers whose main responsibilities are
juveniles and the laws pertaining thereto, INCLUDING CHILDREN UNDER
TWELVE YEARS OF AGE WHOSE BEHAVIOR BUT FOR THEIR AGE WOULD BRING THEM
WITHIN THE JURISDICTION OF THE FAMILY COURT PURSUANT TO ARTICLE THREE OF
THE FAMILY COURT ACT, which training program shall be successfully
completed before such officers are accredited pursuant to section eight
hundred forty-six-h of this chapter.
§ 13. This act shall take effect one year after it shall have become
a law; provided, however, that the amendments to subparagraph (ii) of
paragraph (a) of subdivision 1 of section 409-a of the social services
law made by section nine of this act shall not affect the expiration of
such subparagraph and shall be deemed to expire therewith.