Bill Text: NY S08685 | 2019-2020 | General Assembly | Introduced

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Bill Title: Raises the lower age of juvenile delinquency jurisdiction from seven to twelve years of age and establishes differential response programs for children under the age of twelve.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced - Dead) 2020-07-06 - REFERRED TO RULES [S08685 Detail]

Download: New_York-2019-S08685-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8685

                    IN SENATE

                                      July 6, 2020
                                       ___________

        Introduced  by  Sen.  MONTGOMERY  -- read twice and ordered printed, and
          when printed to be committed to the Committee on Rules

        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:

     1    Section 1.  Subdivision 1 of section 301.2 of the family court act, as
     2  amended  by section 56 of part WWW of chapter 59 of the laws of 2017, is
     3  amended to read as follows:
     4    1. "Juvenile delinquent" means a person  [over  seven  and  less  than
     5  sixteen years of age, or commencing on October first, two thousand eigh-
     6  teen  a  person  over  seven  and  less than seventeen years of age, and
     7  commencing October first, two thousand nineteen a person over seven]  at
     8  least  twelve and less than eighteen years of age, who, having committed
     9  an act that would  constitute  a  crime,  or  a  violation,  where  such
    10  violation  is alleged to have occurred in the same transaction or occur-
    11  rence of the alleged criminal act, if committed by an adult, (a) is  not
    12  criminally  responsible for such conduct by reason of infancy, or (b) is
    13  the defendant in an action ordered removed from a criminal court to  the
    14  family court pursuant to article seven hundred twenty-five of the crimi-
    15  nal procedure law.
    16    §  2.    Subdivision  8  of  section 301.2 of the family court act, as
    17  amended by section 57 of part WWW of chapter 59 of the laws of 2017,  is
    18  amended to read as follows:
    19    8.  "Designated  felony  act" means an act which, if done by an adult,
    20  would be a crime: (i) defined in sections 125.27 (murder  in  the  first
    21  degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the
    22  first  degree);  or  150.20 (arson in the first degree) of the penal law
    23  committed by a person thirteen,  fourteen,  fifteen,  [or]  sixteen,  or
    24  [commencing  October  first,  two thousand nineteen,] seventeen years of
    25  age; or such conduct committed as a  sexually  motivated  felony,  where
    26  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
        S. 8685                             2

     1  sections 120.10 (assault in the first degree); 125.20  (manslaughter  in
     2  the  first  degree); 130.35 (rape in the first degree); 130.50 (criminal
     3  sexual act in the first degree); 130.70 (aggravated sexual abuse in  the
     4  first  degree);  135.20 (kidnapping in the second degree) but only where
     5  the abduction involved the use or  threat  of  use  of  deadly  physical
     6  force;  150.15  (arson  in  the second degree) or 160.15 (robbery in the
     7  first degree) of the penal law committed by a person thirteen, fourteen,
     8  fifteen, [or] sixteen, or[, commencing October first, two thousand nine-
     9  teen,] seventeen years of age; or such conduct committed as  a  sexually
    10  motivated  felony,  where  authorized  pursuant to section 130.91 of the
    11  penal law; (iii) defined in the penal law as an attempt to commit murder
    12  in the first or second degree or kidnapping in the first degree  commit-
    13  ted  by a person thirteen, fourteen, fifteen, [or] sixteen, or [commenc-
    14  ing October first, two thousand nineteen,] seventeen years  of  age;  or
    15  such  conduct committed as a sexually motivated felony, where authorized
    16  pursuant to section 130.91 of the penal law;  (iv)  defined  in  section
    17  140.30 (burglary in the first degree); subdivision one of section 140.25
    18  (burglary  in  the  second  degree);  subdivision  two of section 160.10
    19  (robbery in the second degree) of the penal law; or  section  265.03  of
    20  the  penal  law,  where such machine gun or such firearm is possessed on
    21  school grounds, as that phrase is defined  in  subdivision  fourteen  of
    22  section  220.00  of  the  penal  law  committed  by a person fourteen or
    23  fifteen years of age; or such conduct committed as a sexually  motivated
    24  felony,  where  authorized  pursuant to section 130.91 of the penal law;
    25  (v) defined in section 120.05 (assault in the second degree)  or  160.10
    26  (robbery  in  the  second degree) of the penal law committed by a person
    27  fourteen, fifteen, [or] sixteen or[, commencing October first, two thou-
    28  sand nineteen,] seventeen years of age but only where there has  been  a
    29  prior  finding  by  a court that such person has previously committed an
    30  act which, if committed by an adult, would be the crime  of  assault  in
    31  the second degree, robbery in the second degree or any designated felony
    32  act  specified  in  paragraph  (i),  (ii),  or (iii) of this subdivision
    33  regardless of the age of such person at the time of  the  commission  of
    34  the  prior  act;  (vi) other than a misdemeanor committed by a person at
    35  least [seven but less than seventeen years of age, and commencing  Octo-
    36  ber  first,  two  thousand nineteen, a person at least seven] twelve but
    37  less than eighteen years of age, but only where there  [has]  have  been
    38  two  prior  findings by the court that such person has committed a prior
    39  felony.
    40    § 3. Subdivision 3 of section  304.1  of  the  family  court  act,  as
    41  amended  by section 59 of part WWW of chapter 59 of the laws of 2017, is
    42  amended to read as follows:
    43    3. The detention of a child under [ten] thirteen years  of  age  in  a
    44  secure  detention  facility  shall  not  be  directed  under  any of the
    45  provisions of this article.
    46    § 4.  Paragraph (a) of subdivision 1 of section 306.1  of  the  family
    47  court  act, as amended by chapter 645 of the laws of 1996, is amended to
    48  read as follows:
    49    (a) the child is [eleven] at least twelve years of age [or older]  and
    50  the  crime which is the subject of the arrest or which is charged in the
    51  petition constitutes a class A or B felony; or
    52    § 5.  Subdivision 12 of section 308.1 of  the  family  court  act,  as
    53  added by chapter 920 of the laws of 1982, is amended to read as follows:
    54    12.  The  probation  service shall certify to the division of criminal
    55  justice services  and  to  the  appropriate  police  department  or  law
    56  enforcement  agency  whenever  it  adjusts a case in which the potential
        S. 8685                             3

     1  respondent's fingerprints were taken pursuant to section  306.1  in  any
     2  manner  other than the filing of a petition for juvenile delinquency for
     3  an act which, if committed by  an  adult,  would  constitute  a  felony,
     4  provided,  however,  in  the case of a child [eleven or] twelve years of
     5  age, such certification shall be made only if the act would constitute a
     6  class A or B felony.
     7    § 6.  Paragraph (f) of subdivision 2 of section 353.2  of  the  family
     8  court  act, as amended by chapter 124 of the laws of 1993, is amended to
     9  read as follows:
    10    (f) make restitution or perform services for the public good  pursuant
    11  to section 353.6[, provided the respondent is over ten years of age];
    12    §  7.   The opening paragraph of subdivision 1 of section 353.6 of the
    13  family court act, as amended by chapter 877 of  the  laws  of  1983,  is
    14  amended to read as follows:
    15    At  the  conclusion  of  the dispositional hearing [in cases involving
    16  respondents over ten years of age] the court may:
    17    § 8.  Subdivisions 1, 2, 6 and 7 of section 354.1 of the family  court
    18  act,  subdivision  1  as  added  by  chapter 920 of the laws of 1982 and
    19  subdivisions 2, 6 and 7 as amended by chapter 645 of the laws  of  1996,
    20  are amended to read as follows:
    21    1.  If  a  person  whose  fingerprints, palmprints or photographs were
    22  taken pursuant to section 306.1 or  was  initially  fingerprinted  as  a
    23  juvenile  offender  and  the  action is subsequently removed to a family
    24  court pursuant to article seven  hundred  twenty-five  of  the  criminal
    25  procedure  law  is adjudicated to be a juvenile delinquent for a felony,
    26  the family court shall forward or cause to be forwarded to the  division
    27  of  criminal justice services notification of such adjudication and such
    28  related information as may  be  required  by  such  division,  provided,
    29  however,  in  the  case of a person [eleven or] twelve years of age such
    30  notification shall be provided only if the act upon  which  the  adjudi-
    31  cation is based would constitute a class A or B felony.
    32    2.  If  a  person  whose  fingerprints, palmprints or photographs were
    33  taken pursuant to section 306.1 or  was  initially  fingerprinted  as  a
    34  juvenile offender and the action is subsequently removed to family court
    35  pursuant  to article seven hundred twenty-five of the criminal procedure
    36  law has had all petitions disposed of by the family court in any  manner
    37  other  than an adjudication of juvenile delinquency for a felony, but in
    38  the case of acts committed when such person was [eleven or] twelve years
    39  of age which would constitute a class A or B felony only, all such fing-
    40  erprints, palmprints, photographs, and copies thereof, and all  informa-
    41  tion  relating  to such allegations obtained by the division of criminal
    42  justice services pursuant to section 306.1 shall be destroyed forthwith.
    43  The clerk of the court shall notify the commissioner of the division  of
    44  criminal  justice  services  and the heads of all police departments and
    45  law enforcement agencies  having  copies  of  such  records,  who  shall
    46  destroy such records without unnecessary delay.
    47    6. If a person fingerprinted pursuant to section 306.1 and subsequent-
    48  ly  adjudicated  a  juvenile delinquent for a felony, but in the case of
    49  acts committed when such a person was [eleven or] twelve  years  of  age
    50  which  would  constitute  a  class  A  or B felony only, is subsequently
    51  convicted of a crime, all fingerprints and related information  obtained
    52  by  the  division  of criminal justice services pursuant to such section
    53  and not destroyed pursuant to subdivisions two, five and seven or subdi-
    54  vision twelve of section 308.1 shall  become  part  of  such  division's
    55  permanent adult criminal record for that person, notwithstanding section
    56  381.2 or 381.3.
        S. 8685                             4

     1    7.  When  a  person fingerprinted pursuant to section 306.1 and subse-
     2  quently adjudicated a juvenile delinquent for a felony, but in the  case
     3  of  acts  committed when such person was [eleven or] twelve years of age
     4  which would constitute a class A or B felony only, reaches  the  age  of
     5  twenty-one,  or has been discharged from placement under this act for at
     6  least  three  years,  whichever  occurs  later,  and  has  no   criminal
     7  convictions  or pending criminal actions which ultimately terminate in a
     8  criminal conviction,  all  fingerprints,  palmprints,  photographs,  and
     9  related  information  and  copies  thereof  obtained pursuant to section
    10  306.1 in the possession of the division of  criminal  justice  services,
    11  any  police department, law enforcement agency or any other agency shall
    12  be destroyed forthwith. The division of criminal justice services  shall
    13  notify the agency or agencies which forwarded fingerprints to such divi-
    14  sion  pursuant  to  section  306.1  of their obligation to destroy those
    15  records in their possession. In the case of a  pending  criminal  action
    16  which does not terminate in a criminal conviction, such records shall be
    17  destroyed forthwith upon such determination.
    18    §  9.  Paragraph  (a)  of subdivision 1 of section 409-a of the social
    19  services law, as amended by chapter 87 of the laws of 1993, subparagraph
    20  (i) as amended by chapter 342 of the laws of 2010, and subparagraph (ii)
    21  as amended by section 22 of part C of chapter 83 of the laws of 2002, is
    22  amended to read as follows:
    23    (a) A social services official shall provide preventive services to  a
    24  child  and  his  or  her family, in accordance with the family's service
    25  plan as required by section four hundred nine-e of this chapter and  the
    26  social  services  district's  child  welfare services plan submitted and
    27  approved pursuant to section four hundred nine-d of this chapter, upon a
    28  finding by such official that (i) the child will be placed, returned  to
    29  or  continued  in foster care unless such services are provided and that
    30  it is reasonable to believe that by providing such  services  the  child
    31  will be able to remain with or be returned to his or her family, and for
    32  a former foster care youth under the age of twenty-one who was previous-
    33  ly  placed  in  the  care and custody or custody and guardianship of the
    34  local commissioner of social services or other officer, board or depart-
    35  ment authorized to receive  children  as  public  charges  where  it  is
    36  reasonable  to believe that by providing such services the former foster
    37  care youth will avoid a return to foster care or (ii) the child  is  the
    38  subject  of  a petition under article seven of the family court act[, or
    39  has been determined by the assessment service  established  pursuant  to
    40  section  two  hundred  forty-three-a  of  the  executive law,] or by the
    41  probation service [where no such  assessment  service  has  been  desig-
    42  nated],  to  be at risk of being the subject of such a petition, and the
    43  social services official determines that the child is at risk of  place-
    44  ment into foster care or (iii) the child is under the age of twelve, and
    45  their  behavior  but for their age would bring them within the jurisdic-
    46  tion of the family court pursuant to article three of the  family  court
    47  act,  and  the  social services official determines that the child is at
    48  risk of placement into foster care. Such finding shall be entered in the
    49  child's uniform case  record  established  and  maintained  pursuant  to
    50  section  four hundred nine-f of this [chapter] article. The commissioner
    51  shall promulgate regulations to  assist  social  services  officials  in
    52  making  determinations  of  eligibility for mandated preventive services
    53  pursuant to this subparagraph.
    54    § 10.  Article 6 of the social services law is amended by adding a new
    55  title 12-A to read as follows:
        S. 8685                             5

     1                                 TITLE 12-A
     2          DIFFERENTIAL RESPONSE PROGRAMS FOR CHILDREN UNDER TWELVE
     3  Section 458-o. Differential response programs for children under twelve.
     4    §  458-o. Differential response programs for children under twelve. 1.
     5  Each local social services district, upon the approval of the office  of
     6  children  and family services, shall establish a program that implements
     7  differential responses to provide  services  to  children  under  twelve
     8  years  of age whose behavior, but for their age, would bring them within
     9  the jurisdiction of the family court pursuant to article  three  of  the
    10  family  court act. Such programs shall establish and utilize appropriate
    11  assessments and services for youth,  in  order  to  help  reduce  future
    12  interaction with the juvenile justice and/or child welfare systems. Such
    13  assessments  shall be used to determine what, if any, services are need-
    14  ed, and such services shall utilize the least  restrictive  intervention
    15  protocols  available.  Notwithstanding any other provision of law to the
    16  contrary, the provisions of this section shall apply only to those cases
    17  involving children under twelve years of  age  whose  behavior  but  for
    18  their  age  would bring them within the jurisdiction of the family court
    19  pursuant to article three of the family court act.
    20    2. To establish a differential response  program,  each  local  social
    21  services district, as part of their district-wide child welfare services
    22  plan,  as  defined in section four hundred nine-d of this article, shall
    23  include a plan to serve the youth described in subdivision one  of  this
    24  section while utilizing certain criteria to be promulgated in regulation
    25  by  the office of children and family services including but not limited
    26  to the following:
    27    (a) the types of assessment to determine whether services  are  neces-
    28  sary, services and interventions to be provided to children and families
    29  included  in  the  differential response program for such children and a
    30  description of how the services will be  offered.  Such  services  shall
    31  include, but not be limited to, those services set forth in section four
    32  hundred nine-a of this article and section four hundred fifty-eight-m of
    33  this article;
    34    (b) a description of the process to be followed for planning and moni-
    35  toring the services provided under the differential responses;
    36    (c)    a  description  of  how  the differential response program will
    37  enhance the ability of the district to reduce future  interactions  with
    38  the  juvenile  justice  and child welfare systems, ensure the safety and
    39  well-being of such children, and ways to ensure such  program  addresses
    40  adverse impacts on minority communities;
    41    (d)  a  description  of the training that will be provided to district
    42  and any non-district staff to  be  used  in  the  differential  response
    43  program including, but not limited to, a description of the training set
    44  forth  in  section  eight  hundred forty of the executive law for police
    45  officers whose main responsibilities are juveniles and the laws pertain-
    46  ing thereto; and
    47    (e) a description of any additional funding that may  be  utilized  to
    48  enhance the differential response program.
    49    3.  (a)  All  records  created  as  part  of the differential response
    50  program for children described in subdivision one of this section  shall
    51  include,  but  not be limited to, the initial and any subsequent reasons
    52  why a differential response is recommended for a child, documentation of
    53  all services offered and accepted by such child and  their  family,  the
    54  plan  for  supportive  services  for the child and their family, and all
    55  evaluations and assessments of the child's progress.
        S. 8685                             6

     1    (b)  Records created under the differential response program  for  the
     2  children  described  in  subdivision  one of this section shall be main-
     3  tained for five years after a  child  is  referred  to  a  local  social
     4  services district for intervention as described in this section or until
     5  the child reaches the age of twelve, whichever is sooner.
     6    (c)  All reports assigned to, and records created under, the differen-
     7  tial  response  program,  including  but  not limited to reports made or
     8  written as well as any other information obtained or  photographs  taken
     9  concerning such reports or records shall be confidential,  shall be made
    10  available  only to an entity listed below which has been involved in the
    11  particular youth's service  delivery,  and  shall  not  be  redisclosed,
    12  except  as  authorized  pursuant to subparagraph (vi) of this paragraph,
    13  utilizing non-identifying aggregated information.  Such  entities  shall
    14  include:
    15    (i)  staff  of  the office of children and family services and persons
    16  designated by the office of children and family services;
    17    (ii)  the social services district responsible  for  the  differential
    18  response  program  for  children  described  in  subdivision one of this
    19  section;
    20    (iii) a community-based  agency that has a contract  with  the  social
    21  services  district  to  carry  out activities for the district under the
    22  differential response program;
    23    (iv)  a provider of services under the differential response program;
    24    (v)  the child, or to their parent or legal guardian, and the attorney
    25  for the child; and
    26    (vi) the office of children and family services  and  social  services
    27  districts for the sole purpose of preparing the report required pursuant
    28  to subdivision five of this section.
    29    4. Expenditures by a social services district pursuant to this section
    30  shall  be  reimbursable  from  the  annual  appropriations available for
    31  social services district expenditures for child welfare  services  which
    32  shall  include,  but  not  be  limited  to, preventive services provided
    33  pursuant to section four hundred nine-a of  this  article,  funding  for
    34  family  support  services  programs as set forth in section four hundred
    35  fifty-eight-n of this article and supervision and treatment services for
    36  juveniles program as set forth in section five hundred twenty-nine-b  of
    37  the  executive  law.  Nothing  shall preclude a social services district
    38  from seeking private funds for support of  their  differential  response
    39  programs.
    40    5.  The  office  of  children  and family services shall report on the
    41  differential response programs established  pursuant  to  this  section,
    42  including  the local social services district's efforts to reduce future
    43  interactions with the juvenile justice and child  welfare  systems,  how
    44  the  local  social  districts  are ensuring the safety and well-being of
    45  such children, and how the program  is  addressing  adverse  impacts  on
    46  minority  communities,  on  an  annual basis beginning one year from the
    47  start of every local social services  district's  differential  response
    48  program.
    49    §  11.  Subdivision  1 of section 458-m of the social services law, as
    50  added by section 18-b of part K of chapter 56 of the laws  of  2019,  is
    51  amended to read as follows:
    52    1.  As used in this title, the term "family support services programs"
    53  shall mean a program established  pursuant  to  this  title  to  provide
    54  community-based  supportive  services  to children and families with the
    55  goal of (i) preventing a child from being adjudicated a person  in  need
    56  of supervision and help prevent the out of home placements of such youth
        S. 8685                             7

     1  or  (ii)  preventing  a petition from being filed under article seven of
     2  the family court act, or (iii) to help reduce  future  interaction  with
     3  the  juvenile  justice  and/or  child  welfare system for children under
     4  twelve  years  of  age whose behavior but for their age would bring them
     5  within the jurisdiction of the family court pursuant to article three of
     6  the family court act.
     7    § 12.  Paragraph (j) of subdivision 1 of section 840 of the  executive
     8  law,  as  amended by chapter 617 of the laws of 1990, is amended to read
     9  as follows:
    10    (j) (1) Development, maintenance and dissemination of written policies
    11  and procedures pursuant to title  six  of  article  six  of  the  social
    12  services  law  and  applicable  provisions  of article ten of the family
    13  court act, regarding the mandatory reporting of child abuse or  neglect,
    14  reporting  procedures  and  obligations  of  persons required to report,
    15  provisions for taking a child into protective custody, mandatory report-
    16  ing of deaths, immunity from liability, penalties for failure to  report
    17  and  obligations  for the provision of services and procedures necessary
    18  to safeguard the life or health of  the  child;  (2)  establishment  and
    19  implementation  on  an  ongoing  basis,  of  a  training program for all
    20  current and new police officers regarding the  policies  and  procedures
    21  established  pursuant  to  this  paragraph;  and  (3) establishment of a
    22  training program for police officers  whose  main  responsibilities  are
    23  juveniles  and  the  laws  pertaining  thereto, including children under
    24  twelve years of age whose behavior but for their age  would  bring  them
    25  within the jurisdiction of the family court pursuant to article three of
    26  the  family  court  act,  which  training  program shall be successfully
    27  completed before such officers are accredited pursuant to section  eight
    28  hundred forty-six-h of this chapter.
    29    §  13.  This act shall take effect one year after it shall have become
    30  a law; provided, however, that the amendments to  subparagraph  (ii)  of
    31  paragraph  (a)  of subdivision 1 of section 409-a of the social services
    32  law made by section nine of this act shall not affect the expiration  of
    33  such subparagraph and shall be deemed to expire therewith.