NY State Senate Bill 2019-S5516

Senate Bill S5516

Signed By Governor

2019-2020 Legislative Session

Relates to the determination of capacity to stand trial in juvenile delinquency proceedings in family court

download bill text pdf

Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Dec 06, 2019	signed chap.602
Nov 26, 2019	delivered to governor
Jun 18, 2019	returned to senate passed assembly ordered to third reading rules cal.424 substituted for a8092 referred to codes delivered to assembly passed senate
Jun 11, 2019	amended on third reading 5516b
May 20, 2019	advanced to third reading amended (t) 5516a
May 15, 2019	2nd report cal.
May 14, 2019	1st report cal.766
May 03, 2019	referred to children and families

Votes

- Jun 18, 2019 - Floor Vote
  S5516
  
  60
  
  Aye
  
  2
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 18, 2019
      
      aye (60)
      
      Addabbo Jr.
      
      Akshar
      
      Amedore
      
      Antonacci
      
      Bailey
      
      Benjamin
      
      Biaggi
      
      Boyle
      
      Breslin
      
      Brooks
      
      Carlucci
      
      Comrie
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Harckham
      
      Helming
      
      Hoylman-Sigal
      
      Jackson
      
      Jacobs
      
      Jordan
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      LaValle
      
      Lanza
      
      Little
      
      Liu
      
      Martinez
      
      May
      
      Mayer
      
      Metzger
      
      Montgomery
      
      Myrie
      
      O'Mara
      
      Ortt
      
      Parker
      
      Persaud
      
      Ramos
      
      Ritchie
      
      Rivera
      
      Robach
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Seward
      
      Skoufis
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
      
      nay (2)
      
      Griffo
      
      Ranzenhofer
  May 14, 2019 - Children And Families Committee Vote
  S5516
  
  5
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: May 14, 2019
      
      aye (5)
      
      Addabbo Jr.
      
      Kaplan
      
      Montgomery
      
      Persaud
      
      Salazar
      
      aye wr (2)
      
      Serino
      
      Tedisco

Bill Amendments

Original

B (Active)

2019-S5516 - Details

Law Section:: Family Court Act
Laws Affected:: Amd §§322.1 & 322.2, Fam Ct Act

2019-S5516 - Summary

Relates to the determination of capacity to stand trial in juvenile delinquency proceedings in family court.

2019-S5516 - Sponsor Memo

                                
 
BILL NUMBER: S5516

SPONSOR: MONTGOMERY
 
TITLE OF BILL:  An act to amend the family court act, in relation to
the determination of capacity to stand trial in juvenile delinquency
proceedings in family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Family Court Act § 303.1(1) provides that the Criminal Procedure Law is
not applicable in juvenile delinquency proceedings unless a similar
provision is included in the Family Court Act or unless it is incorpo-
rated by reference. Therefore, in order to apply in Family Court, amend-
ments to the Criminal Procedure Law must be reflected in a specific
reference or similar provision in the Family Court Act.  When an issue
of capacity to stand trial is raised -- that is, an issue regarding the
ability of the accused juvenile to understand the proceedings and assist
in his or her own defenses-- several provisions of the Criminal Proce-
dure Law, including an amendment enacted in 2012, have not been refer-
enced in the Family Court Act.  Accordingly, this measure would import
provisions from the Criminal Procedure Law into the Family Court regard-

ing the settings for both initial evaluations and, where a lack of
capacity to stand trial is found, the provision of treatment services.

First, Criminal Procedure Law 73020 provides that where a criminal
defendant is in custody, examination of his or her fitness to proceed
should be conducted at the detention center or jail in which he or she
is being held unless hospitalization is required. Where a defendant is
not in custody, the evaluation may be conducted on an outpatient basis.
The instant measure thus amends Family Court Act § 322.1 to remove the
requirement that examinations be conducted in a hospital setting in
order to provide that, where a juvenile respondent is in custody, the
examination may be conducted at the detention center. This is consistent
with the decision of the Family Court in Matter of Justin L., 56 Misc.3d
1167 (Fam. Ct., Kings Co., 2017), in which the court's Mental Health
Service Clinic was ordered to send evaluators to the juvenile detention
center since Bellevue Hospital maintained that its clinicians were not
trained to perform capacity examinations for juveniles.

A national guide for drafting juvenile competency statutes, compiled by
a panel of leading national experts under the auspices of the MacArthur
Foundation's "Models for Change" project, advocates flexibility in the
location of capacity evaluations, noting that hospitalization is not
required:

Mental health examiners are able to perform competency evaluations of
juveniles in their offices in the community or in pretrial detention
centers. Therefore, drafters are encouraged to include in the statute a
"least restrictive alternative" provision. ...

If juveniles do not need psychiatric hospitalization (i.e., do not meet
a state's criteria for civil commitment), there is no reason to hospi-
talize them for a competency evaluation, and many reasons to avoid it.
First, competency evaluations can be performed well without hospitaliza-
tion. Second, while many youth who are not mentally ill have special
needs (e.g., youth with developmental disabilities or less serious
mental illnesses), psychiatric hospitals are not designed to meet those
youths' needs. Third, psychiatric hospitalization is very expensive,
with estimates of the daily cost of treating one patient in an inpatient
psychiatric unit ranging from $700 to over $1,000 per day.  Moreover,
many states have only a handful of psychiatric hospital beds for chil-
dren at any given time, and they are almost always occupied.

When juveniles do not require psychiatric treatment, courts in some
cases will decide that they need a secure setting because they might
otherwise endanger themselves or endanger others. This may lead to
placement in a detention center or jail. Competency evaluations can be
conducted effectively in such facilities.

If neither inpatient psychiatric hospitalization nor a secure, non-psy-
chiatric facility is required, the juvenile can be evaluated in a commu-
nity-based setting, such as the evaluator's office, at a community
outpatient mental health center, or within the courthouse.  This commu-
nity-based option not only respects the juveniles' liberty interests by
keeping them within the least restrictive setting when possible, but it
is also much more cost effective and is associated with better outcomes
for these juveniles.

K. Larson and T. Grisso, Developing Statutes for Competence to Stand
Trial in Juvenile Delinquency Proceedings: A Guide for Lawmakers 55 -56
(Models for Change, National Youth Screening and Assessment Project,
MacArthur Foundation, Nov., 2011).

The experts thus recommended that evaluations for juveniles' competence
to stand trial should occur in the least restrictive setting appropriate
for their psychological needs, typically while residing in the community
or in pretrial detention. Specifically, psychiatric hospitalization for
evaluations should be allowed only when the youth's psychiatric condi-
tion requires inpatient psychiatric care.

Id., at 57.

Second, this measure amends Family Court Act § 322.2 to permit treatment
services to be provided on an outpatient basis for youth deemed to lack
capacity. As the Family Court noted, in Matter of Justin L., supra,
that, whereas sections 730.40 and 730.50 of the Criminal Procedure Law
had been amended in 2012 to permit treatment to be provided in felony
cases on an outpatient basis with the prosecutors' consent (L.2012, c.
56, pt. Q), the Family Court Act appeared to allow no such flexibility.
Faced with inadequate options for treatment of a juvenile with multiple
diagnoses, the court was constrained to commit the youth to the Office
of Mental Health but indicated that, had a similar amendment been made
to the Family Court Act, the court might have been able to explore
whether appropriate outpatient options might have been available.

Importantly, this measure harmonizes the Family Court Act with existing
provisions of the Mental Hygiene Law. Both sections 7.09(e) and 13.09(c)
of the Mental Hygiene Law, addressing commitments by Family Court to the
Commissioners of Mental Health and the Office of People with Disabili-
ties, respectively, provide that, upon commitment, the Commissioner "may
place the juvenile in any appropriate facility or program under his
jurisdiction, but he  
OR SHE shall comply with any order requiring
treatment in a residential facility made pursuant to paragraph (c) of
subdivision five of section 322.2 of the family court act." Clearly, if
all commitments were to residential facilities, there would be no need
for the phrase "or program" and the last clause about complying with an
order specifying residential care would be redundant.

Just as flexibility is appropriate regarding the location of the evalu-
ation, so, too, flexibility is warranted in the location of treatment
services needed to bring the juvenile to competence. As the Models for
Change experts indicated:

If a juvenile is found incompetent to stand trial and is considered to
be capable of remediation, the remediation can be accomplished either in
an inpatient or a community-based setting. It is difficult to identify
specific settings for all communities, since communities vary in the
availability of various types of inpatient or community-based services.
Therefore, we offer some basic principles that a state might consider in
determining the proper placement for youth who require remediation of
incompetence.

First, the setting should match the level of clinical treatment needs of
the youth. Thus, youth whose incompetence is related to a serious mental
disorder that ordinarily would require inpatient treatment are appropri-
ate for competence remediation in an inpatient psychiatric setting
designed for children. This is appropriate because psychiatric treatment
is likely to be needed in order to reduce the symptoms of disorder that
are likely to be at the root of the youth's incompetence. No other
incompetent youth, however, should require placement in inpatient
psychiatric treatment programs for competence remediation - for example,
youth whose incompetence is related to intellectual disability or devel-
opmental immaturity and for whom mental disorder is absent (or present
only in a form that typically does not require hospitalization for
treatment).

Second, for youth not requiring inpatient psychiatric treatment, remedi-
ation should be accomplished in community based settings that match the
level of security required for community safety or for assuring that the
youth will be available for later trial. Youth presenting security
issues can be remediated while in juvenile detention centers or staff-
secure shelters. Youth not requiring those levels of security can be
considered for remediation while living at home or other non-secure
settings.

Third, some youth who do not need psychiatric hospitalization may never-
theless have special needs that warrant special community-based arrange-
ments during the time of their remediation. Examples include:  (a) youth
who might need temporary placement in residential programs for youth
with intellectual disabilities, if their own homes do not provide
adequate care and supervision, or (b) youth who have less acute mental
disorders who may need community based mental health center contact
while living at home or in some other protected residential program.

Larson and Grisso, supra, at p. 71.

Third, similar to Criminal Procedure Law § 730.40(2), the measure amends
section 322.2(4) of the Family Court Act to provide that dismissal of a
petition upon issuance of an order of commitment "constitute 
SL A BAR TO
FURTHER PROSECUTION OF THE CHARGE OR CHARGES CONTAINED IN THE PETITION."
IF PROSECUTION OF CRIMINAL CHARGES REGARDING ADULTS ARE BARRED, THERE IS
NO JUSTIFICATION FOR NOT PROVIDING A SIMILAR BAR IN ANALOGOUS JUVENILE
DELINQUENCY CASES.
THERE IS NO REASON TO DENY TO JUVENILES THE LEGAL OPTIONS AVAILABLE IN
ADULT CRIMINAL CASES REGARDING EVALUATIONS OF COMPETENCY TO STAND TRIAL
AND, FOR THOSE FOUND TO LACK CAPACITY, PROVISION OF TREATMENT SERVICES
NEEDED TO ACHIEVE IT. ENACTMENT OF THIS MEASURE WILL FILL A NEEDED GAP
IN THE STATUTORY FRAMEWORK FOR THESE RARE BUT CHALLENGING CASES AND WILL
INCORPORATE THE FLEXIBLE APPROACHES RECOGNIZED AS NATIONAL MODELS. AS
THE COURT STATED, IN MATTER OF JUSTIN L., SUPRA:

THE LACK OF FLEXIBILITY IN A STATUTE THAT GOVERNS CHILDREN WHO HAVE BEEN
FOUND TO LACK CAPACITY TO UNDERSTAND THE PROCEEDINGS APPEARS INCONSIST-
ENT WITH THE GENERAL PURPOSE OF THE FAMILY COURT ACT, WHICH IS "TO
EMPOWER THE FAMILY COURT TO INTERVENE AND POSITIVELY IMPACT THE LIVES OF
TROUBLED YOUNG PEOPLE WHILE PROTECTING THE PUBLIC."  MATTER OF ROBERT
J., 2 N.Y.3D 339 (2004); SEE ALSO FAMILY COURT ACT § 301.1. THE PURPOSE
IS NOT PUNISHMENT. THE FAMILY COURT IS "GIVEN A WIDE RANGE OF POWERS FOR
DEALING WITH THE COMPLEXITIES, OF FAMILY LIFE SO THAT ITS ACTION MAY FIT
THE PARTICULAR NEEDS OF THOSE BEFORE IT." F.C.A. § 141.

THIS MEASURE WOULD TAKE EFFECT ON THE 90TH DAY FOLLOWING ENACTMENT.
LEGISLATIVE HISTORY: OCA 2018-93, 57888 (2017-18) (PASSED)

* FAMILY COURT ACT § 301.2(13) DEFINES AN "INCAPACITATED PERSON" AS AN
ACCUSED JUVENILE "WHO, AS A RESULT OF MENTAL ILLNESS, OR INTELLECTUAL OR
DEVELOPMENTAL DISABILITY AS DEFINED IN SUBDIVISIONS TWENTY AND TWENTY-
TWO OF SECTION 1.03 OF MENTAL HYGIENE LAW, LACKS CAPACITY TO UNDERSTAND
THE PROCEEDINGS AGAINST HIM OR HER TO ASSIST IN HIS OR HER OWN DEFENSE."

2019-S5516 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5516
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 3, 2019
                                ___________
 
 Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
   Administration) -- read twice and ordered printed, and when printed to
   be committed to the Committee on Children and Families
 
 AN ACT to amend the family court act, in relation to  the  determination
   of  capacity  to  stand  trial  in juvenile delinquency proceedings in
   family court
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 1 of section 322.1 of the family court act, as
 amended by chapter 566 of the laws  of  1994,  is  amended  to  read  as
 follows:
   1. At any proceeding under this article, the court must issue an order
 that  the  respondent  be  examined as provided herein when it is of the
 opinion that the respondent may be  an  incapacitated  person.  Notwith-
 standing  the  provisions of this or any other law, the court may direct
 that the examination be conducted on an outpatient basis [when].  IF the
 respondent is [not] in custody at the time the court issues an order  of
 examination,  THE  EXAMINATION  MAY  BE CONDUCTED AT THE PLACE WHERE THE
 RESPONDENT IS BEING HELD IN CUSTODY. The  court  shall  order  that  two
 qualified  psychiatric  examiners  as  defined  in  subdivision seven of
 section 730.10 of the criminal procedure law examine the  respondent  to
 determine if he OR SHE is mentally ill, [mentally retarded or] INTELLEC-
 TUALLY OR developmentally disabled.
   §  2.  Subdivision 4, paragraphs (a), (c) and (d) of subdivision 5 and
 subdivisions 6 and 7 of section 322.2 of the family court act,  subdivi-
 sions  4, 6 and 7 and paragraph (c) of subdivision 5 as added by chapter
 920 of the laws of 1982, paragraph (a) of subdivision 5  as  amended  by
 section  69 of part WWW of chapter 59 of the laws of 2017, and paragraph
 (d) of subdivision 5 as amended by chapter 41 of the laws of  2010,  are
 amended to read as follows:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09846-01-9

 S. 5516                             2
 
   4. If the court finds that there is probable cause to believe that the
 respondent committed a misdemeanor, the respondent shall be committed to
 the  custody of the appropriate commissioner for a reasonable period not
 to exceed ninety days. The court shall dismiss the petition on the issu-
 ance  of  the  order of commitment AND SUCH DISMISSAL SHALL CONSTITUTE A
 BAR TO FURTHER PROSECUTION OF THE CHARGE OR  CHARGES  CONTAINED  IN  THE
 PETITION.
   (a)  If  the  court finds that there is probable cause to believe that
 the respondent committed a felony, it shall order the respondent commit-
 ted to the custody of the commissioner of mental health or  the  commis-
 sioner  of  the office for people with developmental disabilities for an
 initial period not to exceed one year  from  the  date  of  such  order.
 UNLESS  THE  COURT SPECIFIES THAT SUCH COMMITMENT SHALL BE IN A RESIDEN-
 TIAL FACILITY, SUCH COMMISSIONER HAVING CUSTODY MAY ARRANGE  FOR  TREAT-
 MENT  IN  AN  APPROPRIATE  FACILITY  OR PROGRAM, INCLUDING AN OUTPATIENT
 PROGRAM, IN ACCORDANCE WITH SUBDIVISION (E) OF SECTION 7.09 OR  SUBDIVI-
 SION  (C) OF SECTION 13.09, AS ADDED BY CHAPTER 531 OF THE LAWS OF 1979,
 RESPECTIVELY, OF THE MENTAL HYGIENE LAW. Such  period  may  be  extended
 annually  upon  further  application  to  the  court by the commissioner
 having custody or his or her designee.   Such application must  be  made
 not more than sixty days prior to the expiration of such period on forms
 that  have  been prescribed by the chief administrator of the courts. At
 that time, the commissioner must give written notice of the  application
 to  the  respondent,  the  counsel  representing  the respondent and the
 mental hygiene legal service if  the  respondent  is  at  a  residential
 facility.  Upon  receipt  of  such application, the court must conduct a
 hearing to determine the issue of capacity. If, at the conclusion  of  a
 hearing conducted pursuant to this subdivision, the court finds that the
 respondent  is  no  longer incapacitated, he or she shall be returned to
 the family court for further proceedings pursuant to  this  article.  If
 the  court  is  satisfied  that the respondent continues to be incapaci-
 tated, the court shall authorize continued custody of the respondent  by
 the commissioner IN A FACILITY OR PROGRAM for a period not to exceed one
 year.  Such  extensions shall not continue beyond a reasonable period of
 time necessary to determine  whether  the  respondent  will  attain  the
 capacity  to proceed to a fact finding hearing in the foreseeable future
 but in no event shall continue beyond the respondent's eighteenth birth-
 day or, if the respondent was at least sixteen years of age when the act
 was committed, beyond the respondent's twenty-first birthday.
   (c) [If the court finds that there is probable cause to  believe  that
 the  respondent  has  committed a designated felony act, the court shall
 require that treatment be provided in a residential facility within  the
 appropriate office of the department of mental hygiene.
   (d)]  The  commissioner  shall  review the condition of the respondent
 within forty-five days after the respondent is committed to the  custody
 of  the commissioner. He or she shall make a second review within ninety
 days after the respondent is committed to his or her custody.  Thereaft-
 er,  he or she shall review the condition of the respondent every ninety
 days.  The respondent and the counsel for the respondent, shall be noti-
 fied of any such review and afforded an opportunity  to  be  heard.  The
 commissioner  having  custody  shall  apply  to  the  court for an order
 dismissing the petition whenever he or she determines that  there  is  a
 substantial probability that the respondent will continue to be incapac-
 itated  for  the foreseeable future. At the time of such application the
 commissioner must give written notice of the application to the respond-
 ent, the presentment agency and the mental hygiene legal service if  the

 S. 5516                             3
 
 respondent  is  at a residential facility. Upon receipt of such applica-
 tion, the court may on its own motion conduct  a  hearing  to  determine
 whether  there  is  substantial  probability  that  the  respondent will
 continue  to  be  incapacitated  for the foreseeable future, and it must
 conduct such hearing if a demand therefor is made by the  respondent  or
 the  mental  hygiene  legal  service  within ten days from the date that
 notice of the application was given to them. The respondent may apply to
 the court for an order of dismissal on the same ground.
   6. Any order pursuant to this section dismissing a petition shall  not
 preclude  an application for voluntary or involuntary care and treatment
 in a facility OR PROGRAM of the appropriate office of the department  of
 mental  hygiene  pursuant  to  the provisions of the mental hygiene law.
 Unless the respondent is admitted pursuant to such an application he  OR
 SHE shall be released.
   7.  If the commissioner having custody of a child committed to a resi-
 dential facility PURSUANT TO SUBDIVISION FOUR OR PARAGRAPH (A) OF SUBDI-
 VISION FIVE OF THIS SECTION determines at any time that such  child  may
 be  more  appropriately  treated  in a non-residential facility OR ON AN
 OUTPATIENT BASIS, he OR SHE MAY  ARRANGE  FOR  SUCH  TREATMENT.  IF  THE
 COMMISSIONER HAVING CUSTODY OF A CHILD COMMITTED TO A RESIDENTIAL FACIL-
 ITY PURSUANT TO PARAGRAPH (C) OF SUBDIVISION FIVE OF THIS SECTION DETER-
 MINES AT ANY TIME THAT SUCH CHILD MAY BE MORE APPROPRIATELY TREATED IN A
 NON-RESIDENTIAL  FACILITY OR ON AN OUTPATIENT BASIS, HE OR SHE may peti-
 tion the family court for a hearing. If the court finds after a  hearing
 that  treatment  in a non-residential facility OR ON AN OUTPATIENT BASIS
 would be more appropriate for such child, the  court  shall  modify  its
 order  of  commitment to [authorize] DIRECT THE COMMISSIONER TO transfer
 [of such] THE child to a non-residential facility OR ARRANGE  OUTPATIENT
 TREATMENT.  Application  for  [such]  a hearing TO DETERMINE WHETHER ANY
 CHILD COMMITTED TO A RESIDENTIAL FACILITY  UNDER  SUBDIVISIONS  FOUR  OR
 FIVE OF THIS SECTION MAY BE MORE APPROPRIATELY TREATED IN A NON-RESIDEN-
 TIAL FACILITY OR ON AN OUTPATIENT BASIS may be made by the respondent.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law; provided, however, that the amendments made to  para-
 graph (a) of subdivision 5 of section 322.2 of the family court act made
 by section two of this act shall take effect on the same date and in the
 same manner as section 69 of Part WWW of chapter 59 of the laws of 2017,
 takes effect.

2019-S5516A - Details

Law Section:: Family Court Act
Laws Affected:: Amd §§322.1 & 322.2, Fam Ct Act

2019-S5516A - Summary

Relates to the determination of capacity to stand trial in juvenile delinquency proceedings in family court.

2019-S5516A - Sponsor Memo

                                
 
BILL NUMBER: S5516A

SPONSOR: MONTGOMERY
 
TITLE OF BILL:  An act to amend the family court act and the mental
hygiene law, in relation to the determination of capacity to stand trial
in juvenile delinquency proceedings in family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Family Court Act § 303.1(1) provides that the Criminal Procedure Law is
not applicable in juvenile delinquency proceedings unless a similar
provision is included in the Family Court Act or unless it is incorpo-
rated by reference. Therefore, in order to apply in Family Court, amend-
ments to the Criminal Procedure Law must be reflected in a specific
reference or similar provision in the Fathily Court Act.  When an issue
of capacity to stand trial is raised -- that is, an issue regarding the
ability of the accused juvenile to understand the proceedings and assist
in his or her own defense*-- several provisions of the Criminal Proce-
dure Law, including an amendment enacted in 2012, have not been refer-
enced in the Family Court Act.  Accordingly, this measure would import
provisions from the Criminal Procedure Law into the Family Court regard-

ing the settings for both initial evaluations and, where a lack of
capacity to stand trial is found, the provision of treatment services.

First, Criminal Procedure Law 730.20 provides that where a criminal
defendant is in custody, examination of his or her fitness to proceed
should be conducted at the detention center or jail in which he or she
is being held unless hospitalization is required. Where a defendant is
not in custody, the evaluation may be conducted on an outpatient basis.
The instant measure thus amends Family Court Act § 322.1 to remove the
requirement that examinations be conducted in a hospital setting in
order to provide that, where a juvenile respondent is in custody, the
examination may be conducted at the detention center. This is consistent
with the decision of the Family Court in Matter of Justin L., 56 Misc.3d
1167 (Fam. Ct., Kings Co., 2017), in which the court's Mental Health
Service Clinic was ordered to send evaluators to the juvenile detention
center since Bellevue Hospital maintained that its clinicians were not
trained to perform capacity examinations for juveniles.

A national guide for drafting juvenile competency statutes, compiled by
a panel of leading national experts under the auspices of the MacArthur
Foundation's "Models for Change" project, advocates flexibility in the
location of capacity evaluations, noting that hospitalization is not
required:

Mental health examiners are able to perform competency evaluations of
juveniles in their offices in the community or in pretrial detention
centers. Therefore, drafters are encouraged to include in the statute a
"least restrictive alternative" provision. ...

If juveniles do not need psychiatric hospitalization (L e., do not meet
a state's criteria for civil commitment), there is no reason to hospi-
talize them for a competency evaluation, and many reasons to avoid it.
First, competency evaluations can be performed well without hospitaliza-
tion. Second, while many youth who are not mentally ill have special
needs (e.g., youth with developmental disabilities or less serious
mental illnesses), psychiatric hospitals are not designed to meet those
youths' needs. Third, psychiatric hospitalization is very expensive,
with estimates of the daily cost of treating one patient in an inpatient
psychiatric unit ranging from $700 to over $1,000 per day.  Moreover,
many states have only a handful of psychiatric hospital beds for chil-
dren at any given time, and they are almost always occupied.

When juveniles do not require psychiatric treatment, courts in some
cases will decide that they need a secure setting because they might
otherwise endanger themselves or endanger others. This may lead to
placement in a detention center or jail. Competency evaluations can be
conducted effectively in such facilities.

If neither inpatient psychiatric hospitalization nor a secure, non-psy-
chiatric facility is required, the juvenile can be evaluated in a commu-
nity-based setting, such as the evaluator's office, at a community
outpatient mental health center, or within the courthouse.  This commu-
nity-based option not only respects the juveniles' liberty interests by
keeping them within the least restrictive setting when possible, but it
is also much more cost effective and is associated with better outcomes
for these juveniles.

K. Larson and T. Grisso, Developing Statutes for Competence to Stand
Trial in Juvenile Delinquency.Proceedings: A Guide for Lawmakers 55 -56
(Models for Change, National Youth Screening and Assessment Project,
MacArthur Foundation, Nov., 2011).

The experts thus recommended that evaluations for juveniles' competence
to stand trial should occur in the least restrictive setting appropriate
for their psychological needs, typically while residing in the community
or in pretrial detention. Specifically, psychiatric hospitalization for
evaluations should be allowed only when the youth's psychiatric condi-
tion requires inpatient psychiatric care.

Id., at 57.

Second, this measure amends Family Court Act § 322.2 to permit treatment
services to be provided on an outpatient basis for youth deemed to lack
capacity. As the Family Court noted, in Matter of Justin L., supra,
that, whereas sections 730.40 and 730.50 of the Criminal Procedure Law
had been amended in 2012 to permit treatment to be provided in felony
cases on an outpatient basis with the prosecutors' consent (L.2012, c.
56, pt. Q), the Family Court Act appeared to allow no such flexibility.
Faced with inadequate options for treatment of a juvenile with multiple
diagnoses, the court was constrained to commit the youth to the Office
of Mental Health but indicated that, had a similar amendment been made
to the Family Court Act, the court might have been able to explore
whether appropriate outpatient options might have been available.

Importantly, this measure harmonizes the Family Court Act with existing
provisions of the Mental Hygiene Law. Both sections 7.09(e) and 13.09(c)
of the Mental Hygiene Law, addressing commitments by Family Court to the
Commissioners of Mental Health and the Office of People with Disabili-
ties, respectively, provide that, upon commitment, the Commissioner "may
place the juvenile in any appropriate facility or program under his
jurisdiction, but he (or she) shall comply with any order requiring
treatment in a residential facility made pursuant to paragraph (c) of
subdivision five of section 322.2 of the family court act." Clearly, if
all commitments were to residential facilities, there would be no need
for the phrase "or program" and the last clause about complying with an
order specifying residential care would be redundant.

Just as flexibility is appropriate regarding the location of the evalu-
ation; so, too, flexibility is warranted in the location of treatment
services needed to bring the juvenile to competence. As the Models for
Change experts indicated:

If a juvenile is found incompetent to stand trial and is considered to
be capable of remediation, the remediation can be accomplished either in
an inpatient or a community-based setting. It is difficult to identify
specific settings for all communities, since communities vary in the
availability of various types of inpatient or community-based services.
Therefore, we offer some basic principles that a state might consider in
determining the proper placement for youth who require remediation of
incompetence.

First, the setting should match the level of clinical treatment needs of
the youth. Thus, youth whose incompetence is related to a serious mental
disorder that ordinarily would require inpatient treatment are appropri-
ate for competence remediation in an inpatient psychiatric setting
designed for children. This is appropriate because psychiatric treatment
is likely to be needed in order to reduce the symptoms of disorder that
are likely to be at the root of the youth's incompetence. No other
incompetent youth, however, should require placement in inpatient
psychiatric treatment programs for competence remediation - for example,
youth whose incompetence is related to intellectual disability or devel-
opmental immaturity and for whom mental disorder is absent (or present
only in a form that typically does not require hospitalization for
treatment).

Second, for youth not requiring inpatient psychiatric treatment, remedi-
ation should be accomplished in community based settings that match the
level of security required for community safety or for assuring that the
youth will be available for later trial. Youth presenting security
issues can be remediated while in juvenile detention centers or staff-
secure shelters. Youth not requiring those levels of security can be
considered for remediation while living at home or other non-secure
settings.

Third, some youth who do not need psychiatric hospitalization may never-
theless have special needs that warrant special community-based arrange-
ments during the time of their remediation. Examples include:

(a) youth who might need temporary placement in residential programs for
youth with intellectual disabilities, if their own homes do not provide
adequate care and supervision, or (b) youth who have less acute mental
disorders who may need community based mental health center contact
while living at home or in some other protected residential program.

Larson and Grisso, supra, at p. 71.

Third, similar to Criminal Procedure Law § 730.40(2), the measure amends
section 322.2(4) of the Family Court Act to provide that dismissal of a
petition upon issuance of an order of commitment "constitute 
S a bar to
further prosecution of the charge or charges contained in the petition."
If prosecution of criminal charges regarding adults is barred, there is

no justification for not providing a similar bar in analogous juvenile
delinquency cases.

There is no reason to deny to juveniles the legal options available in
adult criminal cases regarding evaluations of competency to stand trial
and, for those found to lack capacity, provision of treatment services
needed to achieve it. Enactment of this measure will fill a needed gap
in the statutory framework for these rare but challenging cases and will
incorporate the flexible approaches recognized as national models. As
the court stated, in Matter of Justin L., supra:

The lack of flexibility in a statute that governs children who have been
found to lack capacity to understand the proceedings appears inconsist-
ent with the general purpose of the Family Court Act, which is "to
empower the Family Court to intervene and positively impact the lives of
troubled young people while protecting the public."  Matter of Robert
J., 2 N.Y.3d 339 (2004); See also Family Court Act § 301.1. The purpose
is not punishment. The Family Court is "given a wide range of powers for
dealing with the complexities of family life so that its action may fit
the particular needs of those before it."  F.C.A. § 141.

This measure would take effect on the 90th day following enactment.

 
LEGISLATIVE HISTORY:

OCA 2018-93, S7888 (2017-18) (passed)


* Family Court Act § 301.2(13) defines an "incapacitated person" as an
accused juvenile "who, as a result of mental illness, or intellectual or
developmental disability as defined in subdivisions twenty and twenty-
two of section 1.03 of mental hygiene law, lacks capacity to understand
the proceedings against him or her to assist in his or her own defense."

2019-S5516A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5516--A
     Cal. No. 766
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 3, 2019
                                ___________
 
 Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
   Administration) -- read twice and ordered printed, and when printed to
   be committed to the Committee on Children  and  Families  --  reported
   favorably  from  said  committee,  ordered to first and second report,
   amended on second report, ordered  to  a  third  reading,  and  to  be
   reprinted  as amended, retaining its place in the order of third read-
   ing
 
 AN ACT to amend the family court act and  the  mental  hygiene  law,  in
   relation  to  the determination of capacity to stand trial in juvenile
   delinquency proceedings in family court
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 1 of section 322.1 of the family court act, as
 amended by chapter 566 of the laws  of  1994,  is  amended  to  read  as
 follows:
   1. At any proceeding under this article, the court must issue an order
 that  the  respondent  be  examined as provided herein when it is of the
 opinion that the respondent may be  an  incapacitated  person.  Notwith-
 standing  the  provisions of this or any other law, the court may direct
 that the examination be conducted on an outpatient basis [when].  IF the
 respondent is [not] in custody at the time the court issues an order  of
 examination,  THE  EXAMINATION  MAY  BE CONDUCTED AT THE PLACE WHERE THE
 RESPONDENT IS BEING HELD IN CUSTODY. The  court  shall  order  that  two
 qualified  psychiatric  examiners  as  defined  in  subdivision seven of
 section 730.10 of the criminal procedure law examine the  respondent  to
 determine  if  he  OR  SHE  is  DIAGNOSED  TO BE mentally ill, [mentally
 retarded or] INTELLECTUALLY OR developmentally disabled.
   § 2. Subdivision 4, paragraphs (a), (c) and (d) of subdivision  5  and
 subdivisions  6 and 7 of section 322.2 of the family court act, subdivi-
 sions 4, 6 and 7 and paragraph (c) of subdivision 5 as added by  chapter
 920  of  the  laws of 1982, paragraph (a) of subdivision 5 as amended by
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD09846-03-9

 S. 5516--A                          2
 
 section 69 of part WWW of chapter 59 of the laws of 2017, and  paragraph
 (d)  of  subdivision 5 as amended by chapter 41 of the laws of 2010, are
 amended to read as follows:
   4. If the court finds that there is probable cause to believe that the
 respondent committed a misdemeanor, the respondent shall be committed to
 the  custody of the appropriate commissioner for a reasonable period not
 to exceed ninety days. UNLESS THE COURT SPECIFIES THAT  SUCH  COMMITMENT
 SHALL BE IN A RESIDENTIAL FACILITY, SUCH COMMISSIONER HAVING CUSTODY MAY
 ARRANGE  FOR  TREATMENT IN AN APPROPRIATE FACILITY OR PROGRAM, INCLUDING
 AN OUTPATIENT PROGRAM, IN ACCORDANCE WITH  SUBDIVISION  (E)  OF  SECTION
 7.09  OR  SUBDIVISION (C-1) OF SECTION 13.09 RESPECTIVELY, OF THE MENTAL
 HYGIENE LAW. The court shall dismiss the petition on the issuance of the
 order of commitment AND SUCH DISMISSAL SHALL CONSTITUTE A BAR TO FURTHER
 PROSECUTION OF THE CHARGE OR CHARGES CONTAINED IN THE PETITION.
   (a) If the court finds that there is probable cause  to  believe  that
 the respondent committed a felony, it shall order the respondent commit-
 ted  to  the custody of the commissioner of mental health or the commis-
 sioner of the office for people with developmental disabilities  for  an
 initial  period  not  to  exceed  one  year from the date of such order.
 UNLESS THE COURT SPECIFIES THAT SUCH COMMITMENT SHALL BE IN  A  RESIDEN-
 TIAL  FACILITY,  SUCH COMMISSIONER HAVING CUSTODY MAY ARRANGE FOR TREAT-
 MENT IN AN APPROPRIATE FACILITY  OR  PROGRAM,  INCLUDING  AN  OUTPATIENT
 PROGRAM,  IN ACCORDANCE WITH SUBDIVISION (E) OF SECTION 7.09 OR SUBDIVI-
 SION (C-1) OF SECTION 13.09 RESPECTIVELY, OF  THE  MENTAL  HYGIENE  LAW.
 Such  period  may  be  extended annually upon further application to the
 court by the commissioner having custody or his or her designee.    Such
 application  must  be made not more than sixty days prior to the expira-
 tion of such period on forms that have  been  prescribed  by  the  chief
 administrator  of  the  courts. At that time, the commissioner must give
 written notice of the application to the respondent, the counsel repres-
 enting the respondent and  the  mental  hygiene  legal  service  if  the
 respondent  is  at a residential facility. Upon receipt of such applica-
 tion, the court must conduct a hearing to determine the issue of capaci-
 ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
 vision, the court finds that the respondent is no longer  incapacitated,
 he  or she shall be returned to the family court for further proceedings
 pursuant to this article. If the court is satisfied that the  respondent
 continues  to  be  incapacitated,  the  court  shall authorize continued
 custody of the respondent by the commissioner IN A FACILITY  OR  PROGRAM
 for  a period not to exceed one year. Such extensions shall not continue
 beyond a reasonable period of time necessary to  determine  whether  the
 respondent will attain the capacity to proceed to a fact finding hearing
 in  the  foreseeable  future  but  in no event shall continue beyond the
 respondent's eighteenth birthday or, if  the  respondent  was  at  least
 sixteen years of age when the act was committed, beyond the respondent's
 twenty-first birthday.
   (c)  [If  the court finds that there is probable cause to believe that
 the respondent has committed a designated felony act,  the  court  shall
 require  that treatment be provided in a residential facility within the
 appropriate office of the department of mental hygiene.
   (d)] The commissioner shall review the  condition  of  the  respondent
 within  forty-five days after the respondent is committed to the custody
 of the commissioner. He or she shall make a second review within  ninety
 days  after the respondent is committed to his or her custody. Thereaft-
 er, he or she shall review the condition of the respondent every  ninety
 days.  The respondent and the counsel for the respondent, shall be noti-

 S. 5516--A                          3
 
 fied  of  any  such  review and afforded an opportunity to be heard. The
 commissioner having custody shall  apply  to  the  court  for  an  order
 dismissing  the  petition  whenever he or she determines that there is a
 substantial probability that the respondent will continue to be incapac-
 itated  for  the foreseeable future. At the time of such application the
 commissioner must give written notice of the application to the respond-
 ent, the presentment agency and the mental hygiene legal service if  the
 respondent  is  at a residential facility. Upon receipt of such applica-
 tion, the court may on its own motion conduct  a  hearing  to  determine
 whether  there  is  substantial  probability  that  the  respondent will
 continue to be incapacitated for the foreseeable  future,  and  it  must
 conduct  such  hearing if a demand therefor is made by the respondent or
 the mental hygiene legal service within ten  days  from  the  date  that
 notice of the application was given to them. The respondent may apply to
 the court for an order of dismissal on the same ground.
   6.  Any order pursuant to this section dismissing a petition shall not
 preclude an application for voluntary or involuntary care and  treatment
 in  a facility OR PROGRAM of the appropriate office of the department of
 mental hygiene pursuant to the provisions of  the  mental  hygiene  law.
 Unless  the respondent is admitted pursuant to such an application he OR
 SHE shall be released.
   7. If the commissioner having custody of a child committed to a  resi-
 dential facility PURSUANT TO SUBDIVISION FOUR OR PARAGRAPH (A) OF SUBDI-
 VISION  FIVE  OF THIS SECTION determines at any time that such child may
 be more appropriately treated in a non-residential  facility  OR  ON  AN
 OUTPATIENT  BASIS,  he  OR  SHE  MAY  ARRANGE FOR SUCH TREATMENT. IF THE
 COMMISSIONER HAVING CUSTODY OF A CHILD COMMITTED TO A RESIDENTIAL FACIL-
 ITY PURSUANT TO SUBDIVISIONS FOUR OR FIVE OF THIS SECTION DETERMINES  AT
 ANY  TIME THAT SUCH CHILD MAY BE MORE APPROPRIATELY TREATED IN A NON-RE-
 SIDENTIAL FACILITY OR ON AN OUTPATIENT BASIS, HE OR SHE may petition the
 family court for a hearing. If the court  finds  after  a  hearing  that
 treatment  in a non-residential facility OR ON AN OUTPATIENT BASIS would
 be more appropriate for such child, the court shall modify its order  of
 commitment  to [authorize] DIRECT THE COMMISSIONER TO transfer [of such]
 THE child to a non-residential facility OR ARRANGE OUTPATIENT TREATMENT.
 Application for [such] a hearing TO DETERMINE WHETHER ANY CHILD  COMMIT-
 TED  TO  A  RESIDENTIAL FACILITY UNDER SUBDIVISIONS FOUR OR FIVE OF THIS
 SECTION MAY BE MORE APPROPRIATELY TREATED IN A NON-RESIDENTIAL  FACILITY
 OR ON AN OUTPATIENT BASIS may be made by the respondent.
   §  3.  Subdivision  (e)  of section 7.09 of the mental hygiene law, as
 amended by chapter 920 of the laws of 1982 and as relettered by  chapter
 509 of the laws of 1988, is amended to read as follows:
   (e) The commissioner shall accept custody of a juvenile under an order
 issued  by  the family court pursuant to the provisions of section 322.2
 of the family court act. He OR SHE may place the juvenile in any  appro-
 priate  facility or program under his OR HER jurisdiction, but he OR SHE
 shall comply with any order requiring treatment in a residential facili-
 ty made pursuant to [paragraph (c)  of]  subdivision  FOUR  OR  five  of
 section  322.2  of  the family court act. In determining the appropriate
 placement, the commissioner shall be furnished with a copy of the  find-
 ings  of the court pursuant to subdivision four or five of section 322.2
 of the family court act and shall consider the nature of the act alleged
 in such findings and the level of the juvenile's mental disability.  The
 commissioner  shall  review  the condition of the juvenile in accordance
 with the requirements of section 322.2 of the family court act and he OR

 S. 5516--A                          4
 
 SHE may petition the family court at any time for any relief  authorized
 by such section.
   §  4.  Subdivision  (c) of section 13.09 of the mental hygiene law, as
 amended by chapter 920 of the laws  of  1982,  is  amended  to  read  as
 follows:
   [(c)]  (C-1) The commissioner shall accept custody of a juvenile under
 an order issued by the  family  court  pursuant  to  the  provisions  of
 section  322.2 of the family court act. He OR SHE may place the juvenile
 in any appropriate facility or program under his  OR  HER  jurisdiction,
 but he OR SHE shall comply with any order requiring treatment in a resi-
 dential facility made pursuant to [paragraph (c) of] subdivision FOUR OR
 five of section 322.2 of the family court act. In determining the appro-
 priate placement, the commissioner shall be furnished with a copy of the
 findings  of  the  court pursuant to subdivision four or five of section
 322.2 of the family court act and shall consider the nature of  the  act
 alleged in such findings and the level of the juvenile's mental disabil-
 ity.  The  commissioner  shall  review  the condition of the juvenile in
 accordance with the requirements of section 322.2 of  the  family  court
 act  and  he  OR  SHE  may petition the family court at any time for any
 relief authorized by such section.
   § 5. This act shall take effect on the ninetieth day  after  it  shall
 have  become a law; provided, however, that the amendments made to para-
 graph (a) of subdivision 5 of section 322.2 of the family court act made
 by section two of this act shall take effect on the same date and in the
 same manner as section 69 of part WWW of chapter 59 of the laws of 2017,
 takes effect.

co-Sponsors

2019-S5516B (ACTIVE) - Details

Law Section:: Family Court Act
Laws Affected:: Amd §§322.1 & 322.2, Fam Ct Act

2019-S5516B (ACTIVE) - Summary

Relates to the determination of capacity to stand trial in juvenile delinquency proceedings in family court.

2019-S5516B (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5516B

SPONSOR: MONTGOMERY
 
TITLE OF BILL:  An act to amend the family court act and the mental
hygiene law, in relation to the determination of capacity to stand trial
in juvenile delinquency proceedings in family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Family Court Act § 303.1(1) provides that the Criminal Procedure Law is
not applicable in juvenile delinquency proceedings unless a similar
provision is included in the Family Court Act or unless it is incorpo-
rated by reference. Therefore, in order to apply in Family Court, amend-
ments to the Criminal Procedure Law must be reflected in a specific
reference or similar provision in the. Family Court Act. When an issue
of capacity to stand trial is raised -- that is, an issue regarding the
ability of the accused juvenile to understand the proceedings and assist
in his or her own defense'-- several provisions of the Criminal Proce-
dure Law, including an amendment enacted in 2012, have not been refer-
enced in the Family Court Act.  Accordingly, this measure would import
provisions from the Criminal Procedure Law into the Family Court regard-

ing the settings for both initial evaluations and, where a lack of
capacity to stand trial is found, the provision of treatment services.

First, Criminal Procedure Law 730.20 provides that where a criminal
defendant is in custody, examination of his or her fitness to proceed
should be conducted at the detention center or jail in which he or she
is being held unless hospitalization is required. Where a defendant is
not in custody, the evaluation may be conducted on an outpatient basis.
The instant measure thus amends Family Court Act § 322.1 to remove the
requirement that examinations be conducted in a hospital setting in
order to provide that, where a juvenile respondent is in custody, the
examination may be conducted where the juvenile is in custody 'so long
as no reasonable outpatient setting is available." This is consistent
with the decision of the Family Court in Matter of Justin L., 56 Misc.3d
1167 (Fam. CL, Kings Co., 2017), in which the court's Mental Health
Service Clinic was ordered to send evaluators to the juvenile detention
center since Bellevue Hospital maintained that its clinicians were not
trained to perform capacity examinations for juveniles.

A national guide for drafting juvenile competency statutes, compiled by
a panel of leading national experts under the auspices of the MacArthur
Foundation's "Models for Change" project, advocates flexibility in the
location of capacity evaluations, noting that hospitalization is not
required:

Mental health examiners are able to perform competency evaluations of
juveniles in their offices in the community or in pretrial detention
centers. Therefore, drafters are encouraged to include in the statute a
"least restrictive alternative" provision. ...

If juveniles do not need psychiatric hospitalization (i.e., do not meet
a state's criteria for civil commitment), there is no reason to hospi-
talize them for a competency evaluation, and many reasons to avoid it.
First, competency evaluations can be performed well without hospitaliza-
tion. Second, while many youth who are not mentally ill have special
needs (e.g., youth with developmental disabilities or less serious
mental illnesses), psychiatric hospitals are not designed to meet those
youths' needs. Third, psychiatric hospitalization is very expensive,
with estimates of the daily cost of treating one patient in an inpatient
psychiatric unit ranging from $700 to over $1,000 per day.  Moreover,
many states have only a handful of psychiatric hospital beds for chil-
dren at any given time, and they are almost always occupied.

When juveniles do not require psychiatric treatment, courts in some
cases will decide that they need a secure setting because they might
otherwise endanger themselves or endanger others. This may lead to
placement in a detention center or jail. Competency evaluations can be
conducted effectively in such facilities.

If neither inpatient psychiatric hospitalization nor a secure, non-psy-
chiatric facility is required, the juvenile can be evaluated in a commu-
nity-based setting, such as the evaluator's office, at a community
outpatient mental health center, or within the courthouse.  This commu-
nity-based option not only respects the juveniles' liberty interests by
keeping them within the least restrictive setting when possible, but it
is also much more cost effective and is associated with better outcomes
for these juveniles.

K. Larson and T. Grisso, Developing Statutes for Competence to Stand
Trial in Juvenile Delinquency Proceedings: A Guide for Lawmakers 55 -56
(Models for Change, National Youth Screening and Assessment Project,
MacArthur Foundation, Nov., 2011).

The experts thus recommended that evaluations for juveniles' competence
to stand trial should occur in the least restrictive setting appropriate
for their psychological needs, typically while residing in the community
or in pretrial detention. Specifically, psychiatric hospitalization for
evaluations should be allowed only when the youth's psychiatric condi-
tion requires inpatient psychiatric care.  Id, at 57.

Second, this measure amends Family Court Act § 322.2 to permit treatment
services to be provided on an outpatient basis for youth deemed by the
Family Court to lack capacity upon application by the Commissioner of
Mental Health or of People With Developmental Disabilities and with
approval of the Court. As the Family Court noted, in Matter of Justin
L., supra, that, whereas sections 730.40 and 730.50 of the Criminal
Procedure Law had been amended in 2012 to permit treatment to be
provided in felony cases on an outpatient basis with the prosecutors'
consent  
L.2012, C. 56, PT. Q, the Family Court Act appeared to allow
no such flexibility. Faced with inadequate options for treatment of a
juvenile with multiple diagnoses, the Family Court was constrained to
commit the youth to the Office of Mental Health but indicated that, had
a similar amendment been made to the Family Court Act, the Court might
have been able to explore whether appropriate outpatient options might
have been available.

Importantly, this measure harmonizes the Family Court Act with existing
provisions of, and makes conforming amendments to, the Mental Hygiene
Law. Both sections 7.09(e) and 13.09(c-1) of the Mental Hygiene Law,
addressing commitments by Family Court to the Commissioners of Mental
Health and the Office of People with Developmental Disabilities, respec-
tively, would be revised to provide that, upon commitment, the Commis-
sioner "may place the juvenile in any appropriate facility or program
under his or her jurisdiction, but he or she shall comply with any order
requiring treatment in a residential facility made pursuant to subdivi-
sion five of section 322.2 of the family court act, unless, after a
hearing held in accordance with subdivision seven of section 322.2 of
the family court act, the court modifies the order." Clearly, if all
commitments were to residential facilities, there would be no need for
the phrase "or program" in the existing law and the last clause about
complying with an order specifying residential care would be redundant.

Just as flexibility is appropriate regarding the location of the evalu-
ation, so, too, flexibility is warranted in the location of treatment
services needed to bring the juvenile to competence. As the Models for
Change experts indicated:

If a juvenile is found incompetent to stand trial and is considered to
be capable of remediation, the remediation can be accomplished either in
an inpatient or a community-based setting. It is difficult to identify
specific settings for all communities, since communities vary in the
availability of various types of inpatient or community-based services.
Therefore, we offer some basic principles that a state might consider in
determining the proper placement for youth who require remediation of
incompetence.

First, the setting should match the level of clinical treatment needs of
the youth. Thus, youth whose incompetence is related to a serious mental
disorder that ordinarily would require inpatient treatment are appropri-
ate for competence remediation in an inpatient psychiatric setting
designed for children. This is appropriate because psychiatric treatment
is likely to be needed in order to reduce the symptoms of disorder that
are likely to be at the root of the youth's incompetence. No other
incompetent youth, however, should require placement in inpatient
psychiatric treatment programs for competence remediation - for example,
youth whose incompetence is related to intellectual disability or devel-
opmental immaturity and for whom mental disorder is absent (or present
only in a form that typically does not require hospitalization for
treatment).

Second, for youth not requiring inpatient psychiatric treatment, remedi-
ation should be accomplished in community based settings that match the
level of security required for community safety or for assuring that the
youth will be available for later trial. Youth presenting security
issues can be remediated while in juvenile detention centers or staff-
secure shelters. Youth not requiring those levels of security can be
considered for remediation while living at home or other non-secure
settings.

Third, some youth who do not need psychiatric hospitalization may never-
theless have special needs that warrant special community-base d
arrangements during the time of their remediation. Examples include:
(a) youth who might need temporary placement in residential programs for
youth with intellectual disabilities, if their own homes do not provide
adequate care and supervision, or (b) youth who have less acute mental
disorders who may need community based mental health center contact
while living at home or in some other protected residential program.

Larson and Grisso, supra, at p. 71.

Third, similar to Criminal Procedure Law § 730.40(2), the measure amends
section 322.2(4) of the Family Court Act to provide that dismissal of a
petition upon issuance of an order of commitment "constitute 
S a bar to
further prosecution of the charge or charges contained in the petition."
If prosecution of criminal charges regarding adults are barred, there is
no justification for not providing a similar bar in analogous juvenile
delinquency cases.

There is no reason to deny to juveniles the legal options available in
adult criminal cases regarding evaluations of competency to stand trial
and, for those found to lack capacity, provision of treatment services
needed to achieve it. Enactment of this measure will fill a needed gap
in the statutory framework for these rare but challenging cases and will
incorporate the flexible approaches recognized as national models. As
the court stated, in Matter of Justin L., supra:

The lack of flexibility in a statute that governs children who have been
found to lack capacity to understand the proceedings appears inconsist-
ent with the general purpose of the Family Court Act, which is "to
empower the Family Court to intervene and positively impact the lives of
troubled young people while protecting the public." Matter of Robert J.,
2 N.Y.3d 339 (2004); See also Family Court Act § 301.1. The purpose is
not punishment. The Family Court is "given a wide range of powers for
dealing with the complexities of family life so that its action may fit
the particular needs of those before it." F.C.A. § 141.

This measure would take effect on the 90th day following enactment.

 
LEGISLATIVE HISTORY:

OCA 2018-93, 57888 (2017-18) (passed)

Family Court Act § 301.2(13) defines an "incapacitated person" as an
accused juvenile "who, as a result of mental illness, or intellectual or
developmental disability as defined in subdivisions twenty and twenty-
two of section 1.03 of mental hygiene law, lacks capacity to understand
the proceedings against him or her to assist in his or her own defense."

2019-S5516B (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5516--B
     Cal. No. 766
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 3, 2019
                                ___________
 
 Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
   Administration) -- read twice and ordered printed, and when printed to
   be committed to the Committee on Children  and  Families  --  reported
   favorably  from  said  committee,  ordered to first and second report,
   amended on second report, ordered  to  a  third  reading,  and  to  be
   reprinted  as amended, retaining its place in the order of third read-
   ing --   amended and ordered reprinted, retaining  its  place  in  the
   order of third reading
 
 AN  ACT  to  amend  the  family court act and the mental hygiene law, in
   relation to the determination of capacity to stand trial  in  juvenile
   delinquency proceedings in family court
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 322.1 of the family court act,  as
 amended  by  chapter  566  of  the  laws  of 1994, is amended to read as
 follows:
   1. At any proceeding under this article, the court must issue an order
 that the respondent be examined as provided herein when  it  is  of  the
 opinion  that  the  respondent  may be an incapacitated person. Notwith-
 standing the provisions of this or any other law, the court  may  direct
 that the examination be conducted on an outpatient basis [when].  IF the
 respondent  is [not] in custody at the time the court issues an order of
 examination, THE EXAMINATION MAY BE CONDUCTED AT  THE  PLACE  WHERE  THE
 RESPONDENT IS BEING HELD IN CUSTODY SO LONG AS NO REASONABLE ALTERNATIVE
 OUTPATIENT  SETTING  IS AVAILABLE. The court shall order that two quali-
 fied psychiatric examiners as defined in subdivision  seven  of  section
 730.10 of the criminal procedure law examine the respondent to determine
 if  he  [is mentally ill, mentally retarded or developmentally disabled]
 OR SHE MAY BE DIAGNOSED AS A PERSON WITH MENTAL ILLNESS OR AN  INTELLEC-
 TUAL OR DEVELOPMENTAL DISABILITY.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD09846-04-9

 S. 5516--B                          2
 
   §  2.  Subdivision 4, paragraphs (a), (c) and (d) of subdivision 5 and
 subdivisions 6 and 7 of section 322.2 of the family court act,  subdivi-
 sions  4, 6 and 7 and paragraph (c) of subdivision 5 as added by chapter
 920 of the laws of 1982, paragraph (a) of subdivision 5  as  amended  by
 section  69 of part WWW of chapter 59 of the laws of 2017, and paragraph
 (d) of subdivision 5 as amended by chapter 41 of the laws of  2010,  are
 amended to read as follows:
   4. If the court finds that there is probable cause to believe that the
 respondent committed a misdemeanor, the respondent shall be committed to
 the  custody of the appropriate commissioner for a reasonable period not
 to exceed ninety days. UNLESS THE COURT SPECIFIES THAT  SUCH  COMMITMENT
 SHALL BE IN A RESIDENTIAL FACILITY, SUCH COMMISSIONER HAVING CUSTODY MAY
 ARRANGE  FOR  TREATMENT IN AN APPROPRIATE FACILITY OR PROGRAM, INCLUDING
 AN OUTPATIENT PROGRAM, IN ACCORDANCE WITH  SUBDIVISION  (E)  OF  SECTION
 7.09  OR  SUBDIVISION (C-1) OF SECTION 13.09 RESPECTIVELY, OF THE MENTAL
 HYGIENE LAW. The court shall dismiss the petition on the issuance of the
 order of commitment AND SUCH DISMISSAL SHALL CONSTITUTE A BAR TO FURTHER
 PROSECUTION OF THE CHARGE OR CHARGES CONTAINED IN THE PETITION.
   (a) If the court finds that there is probable cause  to  believe  that
 the respondent committed a felony, it shall order the respondent commit-
 ted  to  the custody of the commissioner of mental health or the commis-
 sioner of the office for people with developmental disabilities  for  an
 initial  period  not  to  exceed  one  year from the date of such order.
 UNLESS THE COURT SPECIFIES THAT SUCH COMMITMENT SHALL BE IN  A  RESIDEN-
 TIAL  FACILITY,  SUCH COMMISSIONER HAVING CUSTODY MAY ARRANGE FOR TREAT-
 MENT IN AN APPROPRIATE FACILITY  OR  PROGRAM,  INCLUDING  AN  OUTPATIENT
 PROGRAM,  IN ACCORDANCE WITH SUBDIVISION (E) OF SECTION 7.09 OR SUBDIVI-
 SION (C-1) OF SECTION 13.09 RESPECTIVELY, OF  THE  MENTAL  HYGIENE  LAW.
 Such  period  may  be  extended annually upon further application to the
 court by the commissioner having custody or his or her designee.    Such
 application  must  be made not more than sixty days prior to the expira-
 tion of such period on forms that have  been  prescribed  by  the  chief
 administrator  of  the  courts. At that time, the commissioner must give
 written notice of the application to the respondent, the counsel repres-
 enting the respondent and  the  mental  hygiene  legal  service  if  the
 respondent  is  at a residential facility. Upon receipt of such applica-
 tion, the court must conduct a hearing to determine the issue of capaci-
 ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
 vision, the court finds that the respondent is no longer  incapacitated,
 he  or she shall be returned to the family court for further proceedings
 pursuant to this article. If the court is satisfied that the  respondent
 continues  to  be  incapacitated,  the  court  shall authorize continued
 custody of the respondent by the commissioner IN A FACILITY  OR  PROGRAM
 for  a period not to exceed one year. Such extensions shall not continue
 beyond a reasonable period of time necessary to  determine  whether  the
 respondent will attain the capacity to proceed to a fact finding hearing
 in  the  foreseeable  future  but  in no event shall continue beyond the
 respondent's eighteenth birthday or, if  the  respondent  was  at  least
 sixteen years of age when the act was committed, beyond the respondent's
 twenty-first birthday.
   (c)  If  the  court finds that there is probable cause to believe that
 the respondent has committed a designated felony act,  the  court  shall
 require  that treatment be provided in a residential facility within the
 appropriate office of the department of mental hygiene OR IN  AN  OUTPA-
 TIENT FACILITY IF THE COMMISSIONER HAVING CUSTODY OF THE CHILD PETITIONS

 S. 5516--B                          3
 
 THE  COURT  PURSUANT TO SUBDIVISION SEVEN OF THIS SECTION AND SUCH COURT
 APPROVES.
   (d)  The  commissioner  shall  review  the condition of the respondent
 within forty-five days after the respondent is committed to the  custody
 of  the commissioner. He or she shall make a second review within ninety
 days after the respondent is committed to his or her custody.  Thereaft-
 er,  he or she shall review the condition of the respondent every ninety
 days.  The respondent and the counsel for the respondent, shall be noti-
 fied of any such review and afforded an opportunity  to  be  heard.  The
 commissioner  having  custody  shall  apply  to  the  court for an order
 dismissing the petition whenever he or she determines that  there  is  a
 substantial probability that the respondent will continue to be incapac-
 itated  for  the foreseeable future. At the time of such application the
 commissioner must give written notice of the application to the respond-
 ent, the presentment agency and the mental hygiene legal service if  the
 respondent  is  at a residential facility. Upon receipt of such applica-
 tion, the court may on its own motion conduct  a  hearing  to  determine
 whether  there  is  substantial  probability  that  the  respondent will
 continue to be incapacitated for the foreseeable  future,  and  it  must
 conduct  such  hearing if a demand therefor is made by the respondent or
 the mental hygiene legal service within ten  days  from  the  date  that
 notice of the application was given to them. The respondent may apply to
 the court for an order of dismissal on the same ground.
   6.  Any order pursuant to this section dismissing a petition shall not
 preclude an application for voluntary or involuntary care and  treatment
 in  a facility OR PROGRAM of the appropriate office of the department of
 mental hygiene pursuant to the provisions of  the  mental  hygiene  law.
 Unless  the respondent is admitted pursuant to such an application he OR
 SHE shall be released.
   7. If the commissioner having custody of a child committed to a  resi-
 dential facility PURSUANT TO SUBDIVISION FOUR OR PARAGRAPH (A) OF SUBDI-
 VISION  FIVE  OF THIS SECTION determines at any time that such child may
 be more appropriately treated in a non-residential  facility  OR  ON  AN
 OUTPATIENT  BASIS,  he  OR  SHE  MAY  ARRANGE FOR SUCH TREATMENT. IF THE
 COMMISSIONER HAVING CUSTODY OF A CHILD COMMITTED TO A RESIDENTIAL FACIL-
 ITY PURSUANT TO PARAGRAPH (C) OF SUBDIVISION FIVE OF THIS SECTION DETER-
 MINES AT ANY TIME THAT SUCH CHILD MAY BE MORE APPROPRIATELY TREATED IN A
 NON-RESIDENTIAL FACILITY OR ON AN OUTPATIENT BASIS, HE OR SHE may  peti-
 tion  the family court for a hearing. If the court finds after a hearing
 that treatment in a non-residential facility OR ON AN  OUTPATIENT  BASIS
 would  be  more  appropriate  for such child, the court shall modify its
 order of commitment to [authorize] DIRECT THE COMMISSIONER  TO  transfer
 [of  such] THE child to a non-residential facility OR ARRANGE OUTPATIENT
 TREATMENT. Application for [such] a hearing  TO  DETERMINE  WHETHER  ANY
 CHILD  COMMITTED  TO  A  RESIDENTIAL FACILITY UNDER SUBDIVISIONS FOUR OR
 FIVE OF THIS SECTION MAY BE MORE APPROPRIATELY TREATED IN A NON-RESIDEN-
 TIAL FACILITY OR ON AN OUTPATIENT BASIS may be made by the respondent.
   § 3. Subdivision (e) of section 7.09 of the  mental  hygiene  law,  as
 amended  by chapter 920 of the laws of 1982 and as relettered by chapter
 509 of the laws of 1988, is amended to read as follows:
   (e) The commissioner shall accept custody of a juvenile under an order
 issued by the family court pursuant to the provisions of  section  322.2
 of  the family court act. He OR SHE may place the juvenile in any appro-
 priate facility or program under his OR HER jurisdiction, but he OR  SHE
 shall comply with any order requiring treatment in a residential facili-
 ty  made  pursuant to paragraph (c) of subdivision five of section 322.2

 S. 5516--B                          4
 
 of the family court act, UNLESS, AFTER A HEARING HELD IN ACCORDANCE WITH
 SUBDIVISION SEVEN OF SECTION 322.2 OF THE FAMILY COURT  ACT,  THE  COURT
 MODIFIES  THE  ORDER.    In  determining  the appropriate placement, the
 commissioner shall be furnished with a copy of the findings of the court
 pursuant  to  subdivision  four  or  five of section 322.2 of the family
 court act and shall consider the nature of the act alleged in such find-
 ings and the level of the juvenile's mental disability. The commissioner
 shall review the condition  of  the  juvenile  in  accordance  with  the
 requirements  of section 322.2 of the family court act and he OR SHE may
 petition the family court at any time for any relief authorized by  such
 section.
   §  4.  Subdivision  (c) of section 13.09 of the mental hygiene law, as
 amended by chapter 920 of the laws  of  1982,  is  amended  to  read  as
 follows:
   [(c)]  (C-1) The commissioner shall accept custody of a juvenile under
 an order issued by the  family  court  pursuant  to  the  provisions  of
 section  322.2 of the family court act. He OR SHE may place the juvenile
 in any appropriate facility or program under his  OR  HER  jurisdiction,
 but he OR SHE shall comply with any order requiring treatment in a resi-
 dential  facility  made pursuant to paragraph (c) of subdivision five of
 section 322.2 of the family court act, UNLESS, AFTER A HEARING  HELD  IN
 ACCORDANCE  WITH  SUBDIVISION SEVEN OF SECTION 322.2 OF THE FAMILY COURT
 ACT, THE COURT MODIFIES THE ORDER. In determining the appropriate place-
 ment, the commissioner shall be furnished with a copy of the findings of
 the court pursuant to subdivision four or five of section 322.2  of  the
 family  court  act  and  shall consider the nature of the act alleged in
 such findings and the level of the  juvenile's  mental  disability.  The
 commissioner  shall  review  the condition of the juvenile in accordance
 with the requirements of section 322.2 of the family court act and he OR
 SHE may petition the family court at any time for any relief  authorized
 by such section.
   §  5.  This  act shall take effect on the ninetieth day after it shall
 have become a law; provided, however, that the amendments made to  para-
 graph (a) of subdivision 5 of section 322.2 of the family court act made
 by section two of this act shall take effect on the same date and in the
 same manner as section 69 of part WWW of chapter 59 of the laws of 2017,
 takes effect.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Senate Bill S5516

Share this bill

Sponsored By

Velmanette Montgomery

Archive: Last Bill Status - Signed by Governor

Bill Amendments

2019-S5516 - Details

2019-S5516 - Summary

2019-S5516 - Sponsor Memo

2019-S5516 - Bill Text download pdf

2019-S5516A - Details

2019-S5516A - Summary

2019-S5516A - Sponsor Memo

2019-S5516A - Bill Text download pdf

co-Sponsors

John C. Liu

2019-S5516B (ACTIVE) - Details

2019-S5516B (ACTIVE) - Summary

2019-S5516B (ACTIVE) - Sponsor Memo

2019-S5516B (ACTIVE) - Bill Text download pdf

Comments