(a) Any person seeking to originate a proceeding under Article 7 of the Family Court Act to determine whether a child is a person in need of supervision shall first be referred to the designated lead diversion agency, which may be either the probation service or the local department of social services. The clerk shall not accept any petition for filing that does not have attached the notification from the lead diversion agency required by section 735 of the Family Court Act and, in the case of a petition filed by a school district or school official, documentation of the efforts made by the school district or official to remediate the child’s school problems.
(b) The lead diversion agency shall begin to conduct preliminary conferences with the person seeking to originate the proceeding, the potential respondent and any other interested person, on the same day that such persons are referred to the diversion agency in order to gather information needed to assist in diversion of the case from petition, detention and placement through provision of or referral for services. The diversion agency shall permit any participant who is represented by a lawyer to be accompanied by the lawyer at any preliminary conference.
(c) During the preliminary conferences, the diversion agency shall ascertain, from the person seeking to originate the proceeding, a brief statement of the underlying events, an assessment of whether the child would benefit from diversion services, respite care and other alternatives to detention and, if known to that person, a brief statement of the factors that would be of assistance to the court in determining whether the potential respondent should be detained or released in the event that a petition is filed. Such factors include whether there is a substantial probability that the respondent would not be likely to appear in court if released, whether he or she would be likely to benefit from diversion services, whether all available alternatives to detention have been exhausted and, in the case of a child 16 years of age or older, whether special circumstances exist warranting detention. The diversion agency shall also gather information to aid the court in its determination of whether remaining in the home would be contrary to the child’s best interests and, where appropriate, whether reasonable efforts were made to prevent or eliminate the need for removal of the child from his or her home.
(d) At the first appearance at a conference by each of the persons listed in subdivision (b) of this section, the diversion agency shall inform such person concerning the function of the diversion process and that:
(1) he or she has the right to participate in the diversion process;
(2) the diversion agency is not authorized to and cannot compel any person to appear at any conference, produce any papers or visit any place, but if the person seeking to originate the proceeding does not cooperate with the diversion agency, he or she will not be able to file a petition. The court may direct the parties to cooperate with the diversion agency even after a petition has been filed;
(3) statements made to the diversion agency are subject to the confidentiality provisions contained in section 735 of the Family Court Act;
(4) if the diversion process is not successfully concluded for reasons other than the noncooperation of the person seeking to originate the proceeding, the diversion agency shall notify the person seeking to originate the proceeding in writing of that fact and that the person seeking to originate the proceeding is entitled to access to the court for the purpose of filing a petition; oral notification shall be confirmed in writing.
(e) If the diversion process is not successfully concluded, the diversion agency shall notify all the persons who participated therein, in writing, of that fact and of the reasons therefor, including a description of the services offered and efforts made to avert the filing of a petition. The notification shall be appended to the petition.
Historical Note
Sec. filed Jan. 9, 1986; amd. filed Feb. 16, 1988 eff. April 1, 1988.
Amended 205.62 on Oct. 26, 2005.