N.Y. Comp. Codes R. & Regs. tit. 9 § 357.9

Current through Register Vol. 46, No. 45, November 2, 2024

Section 357.9 - Petition to court

(a) A complaint may be referred for petition only after determining that there is no substantial likelihood that the youth and family will benefit from further attempts to remediate the behavior which gave rise to the complaint;

(b) No petition may be filed by the parent(s) or other person(s) legally responsible for his/her care where diversion services have been terminated because of the failure of the parent(s) or other person(s) legally responsible for his/her care to consent to or participate in diversion services.

(c) Where a parent refuses to cooperate with services in a school-referred PINS matter, an educational neglect report may be made regarding the parent(s) or other person(s) legally responsible for his/her care where there has been a pattern of illegal absences.

(d) Where the matter involves truancy and/or ungovernable behavior at school and the youth is a special education student, probation shall not refer the matter for petition unless a Manifestation Determination hearing has been held by the Committee on Special Education (CSE) and the school has provided such documentation to the probation department and the court that the student's behaviors are not related to the student's disability, thereby warranting court action;

(e) Once a petition is filed, diversion efforts may continue pending court action in accordance with section 357.7(d)(2) of this Part.

(f) Where probation refers a matter for petition, it shall prepare a petition report to the court. The petition report shall be approved and signed by a supervisor or their designee. The report shall address all of the required elements for filing, including:

(1) whether probation has diligently attempted to prevent the filing of a PINS petition; and

(2) whether probation has assessed if the youth would benefit from residential respite services; and

(3) whether probation has considered if alternatives to pre-dispositional placement are appropriate to avoid remand of the youth to pre-dispositional placement; and

(4) whether the potential petitioner has complied with the requirements of preliminary procedure as set forth in FCA section 735; and

(5) that probation has terminated diversion services because it has determined that there is no substantial likelihood that the youth and family will benefit from further attempts; and

(6) that the underlying issues of the complaint have not been resolved after attempting to engage the youth and/or family in services or been unable to engage the youth in services where such youth is a runaway; and

(7) where probation has determined that the youth is a runaway whose current whereabouts are unknown, that the appropriate police agency has been notified, and the parent(s) or other person(s) legally responsible for his/her care are seeking a warrant from the court; and

(8) where the potential petitioner is the parent or other person(s) legally responsible for his/her care, that there is no bar to the filing of the petition as the potential petitioner consented to and participated in diversion services; and

(9) any previous actions probation has taken with respect to the case, and the documentation of diligent attempts to provide appropriate services; and

(10) specific information regarding the unresolved issues related to the complaint; and

(11) a recommendation as to the feasibility of returning the case to probation diversion so that diversion attempts may be undertaken; and

(12) attachment of any additional written records that support the complaint.

(g) Pursuant to FCA section 735(h), no statement made by the potential respondent to the designated lead agency, or to any agency or organization to which the potential respondent has been referred, may be admitted into evidence at a fact-finding hearing, or, if the proceeding is transferred to a criminal court, at any time prior to a conviction. This shall apply when such statements were made to the designated lead agency or to any agency or organization:

(1) prior to the filing of the petition; or

(2) prior to the time the respondent has been notified that attempts at diversion will not be made or have been terminated; or

(3) prior to the commencement of a fact-finding hearing if attempts at diversion have not terminated previously.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 357.9

Amended New York State Register March 31, 2021/Volume XLIII, Issue 13, eff. 3/31/2021

Amended New York State Register March 29, 2023/Volume XLV, Issue 13, eff. 3/29/2023