Rudy S., Matter of

• Decision Date: 25 September 1979
• Parties: In the Matter of RUDY S. a person alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

Page 549

420 N.Y.S.2d 549

100 Misc.2d 1112

In the Matter of RUDY S. a person alleged to be a Juvenile

Delinquent, Respondent.

Family Court, Richmond County.

Sept. 25, 1979.

Allen G. Schwartz, Corp. Counsel, by Archibald H. Broomfield, Asst. Corp. Counsel, Staten Island, for petitioner.

Charles Schinitsky, Legal Aid Society, Brooklyn, by Ernestine Benizeau, Staten Island, for respondent.

DECISION AND ORDER

DANIEL D. LEDDY, Jr., Judge:

Does the petitioner-complainant in a juvenile delinquency proceeding have an absolute right to a hearing on his petition even when the Court is satisfied, prior to fact-finding, that a dismissal would be in the best interests of the child and not inimical to the protection of the community?

The instant petition alleges that the respondent committed acts which, if done by an adult would constitute the crimes of menacing, Penal Law (P.L.) Sec. 120.15, and criminal possession of a weapon in the fourth degree P.L. Sec. 265.01. On the date of the scheduled hearing, the respondent was placed, on another docket, with the Commissioner of Social Services (Commissioner) as a neglected child. Specifically, the Court had found that his mother's paramour, while intoxicated, had beaten the boy excessively. On one such occasion, the youngster sustained severe bruises about his back. The Court also found that the boy's mother had failed to take appropriate action to protect the child from these assaults. The placement with the Commissioner was ordered after a full investigation by the Probation Department and the receipt of a complete psychiatric evaluation.

In light of the disposition of the neglect case, the Law Guardian moved to dismiss the instant delinquency matter. The petitioner, however, insisted on a hearing. The Court, therefore, must clarify the status of the petitioner-complainant and determine whether it has the power to grant the Law Guardian's motion over his objection at this pre-fact-finding stage of the proceeding.

This very same issue was raised as a question of first impression in Matter of Charles C., 83 Misc.2d 388, 371 N.Y.S.2d 582. There the Family Court (Shea, J.) decided that although a petitioner in a delinquency proceeding has a statutory right to file a petition this does not give him the further right to a trial. The Court stated:

"A delinquency proceeding is civil in nature (See, F.C.A. Sec. 781) in that its purpose is not punitive and it is governed procedurally by the CPLR to the extent its provisions are appropriate . . . However, the Family Court Act itself provides protections to juveniles which have their origins in the criminal law . . . Moreover, the United States Supreme Court has accorded children many of the Fourteenth Amendment due process rights available to adult criminal defendants. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84; Matter of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Matter of Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; cf. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647. The New York Court of Appeals has recognized that delinquency proceedings, which may result 'in a loss of personal freedom, are at the very least quasi-criminal in nature.' Matter of Gregory W., 19 N.Y.2d 55, 62, 277 N.Y.S.2d 675, 224 N.E.2d 102." Id., p. 392, 371 N.Y.S.2d p. 586.

Judge Shea went on to cite Matter of William S., 70 Misc. 2d 320, 322, 333 N.Y.S.2d 466, 469, and its description of delinquency cases as being "hybrid in nature," an expression of the dilemma "which often confronts the Family Court in juvenile matters is the proceeding Criminal or Civil?" Id., p. 321, 333 N.Y.S.2d p. 468. Without allowing this dilemma to prevent it from responding meaningfully to the issue presented, the Court in Charles C., supra, looked to the reality of the matter before it. Recognizing its unique role in delinquency proceedings, it concluded:

"In determining whether a hearing should be held in a delinquency case, the Court should give weight to the wishes of petitioner and complainant, but it may not permit them to have the deciding voice. Their knowledge pertains only to the facts arising from the alleged delinquent act. The Courts also must consider and apply Family Court Act § 745 which mandates that before a child can be adjudged a delinquent, there must be a need for court intervention the child must be found to be in need of supervision, treatment or confinement. Matter of Ronny, 40 Misc.2d 194, 197, 242 N.Y.S.2d 844; Midonick, Children, Parents and the Courts: Juvenile Delinquency, Ungovernability and Neglect 16-17 (1972)." Id., 83 Misc.2d p. 393, 371 N.Y.S.2d p. 587.

It should be noted that in citing Matter of Ronny, supra, Judge Shea refers, in particular, to the following passage:

". . . the finding of fact as to conduct alone may not support an adjudication . . . of 'delinquency' . . . This petition will be dismissed without any adjudication of 'delinquency' . . . if the probation and psychiatric reports indicate that the boy is not in need of supervision, treatment or confinement under court order. (Family Court Act Secs. 743 (now Sec. 712(g)), 745, 752.) In this respect, a finding of delinquency . . . requires a basis of a finding of a Condition showing need for the attention of the court, in addition to the mere conduct alleged, and in this respect differs from the criminal court procedures for older persons. The Family Court does not find a child 'delinquent' . . . unless there is a need for its rehabilitative or protective functions." Id., 40 Misc.2d p. 197, 242 N.Y.S.2d p. 848.

The reasoning and holdings in Matter of Charles C. supra, and Matter of Ronny, supra, seems completely dispositive of the issue at bar. And yet, a doubt is created in this Court's mind by the opinion of one of its respected brother judges (Turret, J.) in the Matter of Elizabeth J., 98 Misc.2d 362, 413 N.Y.S.2d 867. Judge Turret cites therein Matter of Charles C., supra, and Matter of Edwin R., 67 Misc.2d 452, 323 N.Y.S.2d 909. Both had granted pre-adjudicatory motions to dismiss delinquency petitions; both had supported their decisions by referring to that language in Matter of Ronny, supra, which is quoted above. Judge Turret, however, held that these cases are no longer controlling:

"These cases were grounded on the proposition that there must be a need for court intervention to supervise, treat, or confine a child. Since these cases were decided, Sec. 711 of the F.C.A. . . . has been amended. Laws of 1976, chapter 878, was enacted and F.C.A. Sec. 711 now provides: 'In any juvenile delinquency proceeding under this article, the court shall consider the needs and best interests of the respondent As well as the need for the protection of the community.' (emphasis added)." Matter of Elizabeth J., supra, 98 Misc.2d p. 363, 413 N.Y.S.2d p. 867.

The italicized portion of Section 711 is denominated an "additional factor," which "can only be weighed after there has been a finding of fact (F.C.A. Sec. 752) and after a second hearing on disposition. (F.C.A. Secs. 743, 753)." Id., p. 364, 413 N.Y.S.2d pp. 867-68.

Although Elizabeth J., supra, appears to decide categorically that pre-adjudicating dismissals are now barred by the amended section 711 of the Family Court Act (F.C.A.) it also states that "(a)t a dispositional hearing the court should have before it a current investigation and report from the Probation Department as to respondent's present needs for treatment, supervision or confinement, with due consideration for protection of the community." Id., p. 364, 413 N.Y.S.2d p. 868. It is not clear, therefore, whether the decision in Elizabeth J., supra, would have been different if the Court had had current probation reports prior to fact-finding. And yet, notwithstanding this closing language of Elizabeth J., the impact of the decision seems to rest on the Court's conclusion that the 1976 amendment of F.C.A. Sec. 711 precludes the dismissal of delinquency petitions before fact-finding, as had been approved previously in Matter of Charles C., supra and Matter of Edwin R., supra.

Consequently, the Court must disagree with Judge Turret's view of the prevailing law. It takes issue with him on the impact of Sec. 711's 1976 amendment and his rejection of Family Court's unique discretion to deal swiftly, efficiently and meaningfully with the realities of pending delinquency matters.

Initially, it must be underscored that in amending F.C.A. Sec. 711 the Laws of 1976, chapter 878, Sec. 2, added Both the needs and best interests of the respondent and the protection of the community to the purpose clause of Article 7. Previously, neither of these considerations appeared in the statute. Therefore, the 1976 amendment could have one of three possible meanings. The legislature either recognized that neither of these considerations previously existed and sought to establish both; or that both had existed and sought merely to codify them; or that only one had existed and in codifying one sought to add and codify the other. The Court in Elizabeth J., supra, chose the third option, but without citing any authority for that proposition. This Court now holds that the rehabilitation of the juvenile and the protection of the community have always constituted the rationale for Family Court delinquency proceedings. Thus, the 1976 amendment merely codified that pre-existing dual purpose.

In May, 1976, prior to the effective date of the new section 711, the Court of Appeals in People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 385 N.Y.S.2d 518, 350 N.E.2d 906, discussed the constitutionality of pre-trial preventive detention under former F.C.A. Sec. 739(b) (L. 1962, c. 686). In its analysis of that section, which had been part of the Family Court Act as originally enacted in 1962, the Court clearly indicated that the state's concern in dealing with juvenile delinquents has always been twofold:

". . . protection of the public peace...