§ 353.4. Transfer of certain juvenile delinquents. 1. If at the
conclusion of the dispositional hearing and in accordance with section
352.2 of this act the court finds that the respondent has a mental
illness, or intellectual or developmental disability, as defined in
section 1.03 of the mental hygiene law, which is likely to result in
serious harm to himself or herself or others, the court may issue an
order placing such respondent with the office of children and family
services or, with the consent of the local commissioner, with a local
commissioner of social services. Any such order shall direct the
temporary transfer for admission of the respondent to the custody of
either the commissioner of mental health or the commissioner of
developmental disabilities who shall arrange the admission of the
respondent to the appropriate facility of the department of mental
hygiene. The director of a hospital operated by the office of mental
health may, subject to the provisions of section 9.51 of the mental
hygiene law, transfer a person admitted to the hospital pursuant to this
subdivision to a residential treatment facility for children and youth,
as that term is defined in section 1.03 of the mental hygiene law, if
care and treatment in such a facility would more appropriately meet the
needs of the respondent. Persons temporarily transferred to such custody
under this provision may be retained for care and treatment for a period
of up to one year and whenever appropriate shall be transferred back to
the office of children and family services pursuant to the provisions of
section five hundred nine of the executive law or transferred back to
the local commissioner of social services. Within thirty days of such
transfer back, application shall be made by the office of children and
family services or the local commissioner of social services to the
placing court to conduct a further dispositional hearing at which the
court may make any order authorized under section 352.2 of this act,
except that the period of any further order of disposition shall take
into account the period of placement hereunder. Likelihood to result in
serious harm shall mean (a) substantial risk of physical harm to himself
or herself as manifested by threats or attempts at suicide or serious
bodily harm or other conduct demonstrating he or she is dangerous to
himself or herself or (b) a substantial risk of physical harm to other
persons as manifested by homicidal or other violent behavior by which
others are placed in reasonable fear of serious bodily harm.

2. (a) Where the order of disposition is for a restrictive placement
under section 353.5 of this act if the court at the dispositional
hearing finds that the respondent has a mental illness, or intellectual
or developmental disability, as defined in section 1.03 of the mental
hygiene law, which is likely to result in serious harm to himself or
herself or others, the court may, as part of the order of disposition,
direct the temporary transfer, for a period of up to one year, of the
respondent to the custody of the commissioner of mental health or of
developmental disabilities who shall arrange for the admission of the
respondent to an appropriate facility under his or her jurisdiction
within thirty days of such order. The director of the facility so
designated by the commissioner shall accept such respondent for
admission.

(b) Persons transferred to the office of mental health or the office
for people with developmental disabilities, pursuant to this
subdivision, shall be retained by such office for care and treatment for
the period designated by the court. At any time prior to the expiration
of such period, if the director of the facility determines that the
child is no longer mentally ill or no longer in need of active
treatment, the responsible office shall make application to the family
court for an order transferring the child back to the office of children
and family services. Not more than thirty days before the expiration of
such period, there shall be a hearing, at which time the court may:

(i) extend the temporary transfer of the respondent for an additional
period of up to one year to the custody of the commissioner of mental
health or the commissioner of developmental disabilities pursuant to
this subdivision; or

(ii) continue the restrictive placement of the respondent in the
custody of the office of children and family services.

(c) During such temporary transfer, the respondent shall continue to
be under restrictive placement with the office of children and family
services. Whenever the respondent is transferred back to the office of
children and family services the conditions of the placement as set
forth in section 353.5 shall apply. Time spent by the respondent in the
custody of the commissioner of mental health or the commissioner of
developmental disabilities shall be credited and applied towards the
period of placement.

3. No dispositional hearing at which proof of a mental disability as
defined in section 1.03 of the mental hygiene law is to be offered shall
be completed until the commissioner of mental health or commissioner of
developmental disabilities, as appropriate, have been notified and
afforded an opportunity to be heard at such dispositional hearing.

4. No order of disposition placing the respondent in accordance with
this section shall be entered except upon clear and convincing evidence
which shall include the testimony of two examining physicians as
provided in section two hundred fifty-one.

5. If the respondent has been in detention pending disposition, the
initial period of placement ordered under this section shall be credited
with and diminished by the amount of time spent by the respondent in
detention prior to the commencement of the placement unless the court
finds that all or part of such credit would not serve the needs and best
interests of the respondent or the need for protection of the community.