N.Y. Fam. Ct. Act § 353.4

§ 353.4. Transfer of certain juvenile delinquents. 1. If at the\nconclusion of the dispositional hearing and in accordance with section\n352.2 of this act the court finds that the respondent has a mental\nillness, or intellectual or developmental disability, as defined in\nsection 1.03 of the mental hygiene law, which is likely to result in\nserious harm to himself or herself or others, the court may issue an\norder placing such respondent with the office of children and family\nservices or, with the consent of the local commissioner, with a local\ncommissioner of social services. Any such order shall direct the\ntemporary transfer for admission of the respondent to the custody of\neither the commissioner of mental health or the commissioner of\ndevelopmental disabilities who shall arrange the admission of the\nrespondent to the appropriate facility of the department of mental\nhygiene. The director of a hospital operated by the office of mental\nhealth may, subject to the provisions of section 9.51 of the mental\nhygiene law, transfer a person admitted to the hospital pursuant to this\nsubdivision to a residential treatment facility for children and youth,\nas that term is defined in section 1.03 of the mental hygiene law, if\ncare and treatment in such a facility would more appropriately meet the\nneeds of the respondent. Persons temporarily transferred to such custody\nunder this provision may be retained for care and treatment for a period\nof up to one year and whenever appropriate shall be transferred back to\nthe office of children and family services pursuant to the provisions of\nsection five hundred nine of the executive law or transferred back to\nthe local commissioner of social services. Within thirty days of such\ntransfer back, application shall be made by the office of children and\nfamily services or the local commissioner of social services to the\nplacing court to conduct a further dispositional hearing at which the\ncourt may make any order authorized under section 352.2 of this act,\nexcept that the period of any further order of disposition shall take\ninto account the period of placement hereunder. Likelihood to result in\nserious harm shall mean (a) substantial risk of physical harm to himself\nor herself as manifested by threats or attempts at suicide or serious\nbodily harm or other conduct demonstrating he or she is dangerous to\nhimself or herself or (b) a substantial risk of physical harm to other\npersons as manifested by homicidal or other violent behavior by which\nothers are placed in reasonable fear of serious bodily harm.\n 2. (a) Where the order of disposition is for a restrictive placement\nunder section 353.5 of this act if the court at the dispositional\nhearing finds that the respondent has a mental illness, or intellectual\nor developmental disability, as defined in section 1.03 of the mental\nhygiene law, which is likely to result in serious harm to himself or\nherself or others, the court may, as part of the order of disposition,\ndirect the temporary transfer, for a period of up to one year, of the\nrespondent to the custody of the commissioner of mental health or of\ndevelopmental disabilities who shall arrange for the admission of the\nrespondent to an appropriate facility under his or her jurisdiction\nwithin thirty days of such order. The director of the facility so\ndesignated by the commissioner shall accept such respondent for\nadmission.\n (b) Persons transferred to the office of mental health or the office\nfor people with developmental disabilities, pursuant to this\nsubdivision, shall be retained by such office for care and treatment for\nthe period designated by the court. At any time prior to the expiration\nof such period, if the director of the facility determines that the\nchild is no longer mentally ill or no longer in need of active\ntreatment, the responsible office shall make application to the family\ncourt for an order transferring the child back to the office of children\nand family services. Not more than thirty days before the expiration of\nsuch period, there shall be a hearing, at which time the court may:\n (i) extend the temporary transfer of the respondent for an additional\nperiod of up to one year to the custody of the commissioner of mental\nhealth or the commissioner of developmental disabilities pursuant to\nthis subdivision; or\n (ii) continue the restrictive placement of the respondent in the\ncustody of the office of children and family services.\n (c) During such temporary transfer, the respondent shall continue to\nbe under restrictive placement with the office of children and family\nservices. Whenever the respondent is transferred back to the office of\nchildren and family services the conditions of the placement as set\nforth in section 353.5 shall apply. Time spent by the respondent in the\ncustody of the commissioner of mental health or the commissioner of\ndevelopmental disabilities shall be credited and applied towards the\nperiod of placement.\n 3. No dispositional hearing at which proof of a mental disability as\ndefined in section 1.03 of the mental hygiene law is to be offered shall\nbe completed until the commissioner of mental health or commissioner of\ndevelopmental disabilities, as appropriate, have been notified and\nafforded an opportunity to be heard at such dispositional hearing.\n 4. No order of disposition placing the respondent in accordance with\nthis section shall be entered except upon clear and convincing evidence\nwhich shall include the testimony of two examining physicians as\nprovided in section two hundred fifty-one.\n 5. If the respondent has been in detention pending disposition, the\ninitial period of placement ordered under this section shall be credited\nwith and diminished by the amount of time spent by the respondent in\ndetention prior to the commencement of the placement unless the court\nfinds that all or part of such credit would not serve the needs and best\ninterests of the respondent or the need for protection of the community.\n