Cassandra R., Matter of

• Decision Date: 20 July 1992
• Citation: 155 Misc.2d 756,589 N.Y.S.2d 739
• Parties: In the Matter of CASSANDRA R., A Person Alleged to be in Need of Supervision, Respondent.
• Court: New York Family Court

Page 739

589 N.Y.S.2d 739

155 Misc.2d 756

In the Matter of CASSANDRA R., A Person Alleged to be in Need of Supervision, Respondent.

Family Court, City of New York Bronx County.

July 20, 1992.

Jeff Bernstein, Bayside, for petitioner.

Lenore Gittis, The Legal Aid Society, Bronx (Mitchell Kessler, of counsel), for respondent Juvenile Rights Div.

RICHARD N. ROSS, Judge:

Petitioner filed a proceeding pursuant to Article 7 of the Family Court Act to have her thirteen-year-old daughter adjudicated a Person in Need of Supervision (PINS). The petition alleged that the Respondent absconded from home on four occasions, was truant from school, smoked cigarettes, drank alcohol, and was disobedient and beyond Petitioner's control. The Respondent moved to dismiss the petition as jurisdictionally defective on the grounds that it failed to satisfy the pleading requirements set forth in Family Court Act (hereinafter FCA) § 732(a) and was not supported by non-hearsay factual allegations sufficient to establish the prima facie commission by the Respondent of every element of the alleged behavior. The Petitioner argued that the petition satisfied the jurisdictional requirements of the Family Court Act and cross-moved to amend the petition pursuant to Civil Practice Law and Rules (hereinafter CPLR) § 3025(b), which provides:

A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.

The Petitioner's cross-motion to amend the petition is denied and the Respondent's motion to dismiss the petition is granted.

The petition contains six allegations as follows: (1) "Respondent absconded from the home on May 18, 1992. Whereabouts are unknown;" (2) "Respondent has absconded three times in the past;" (3) "Respondent is truant from school;" (4) "Respondent smokes cigarettes;" (5) "Respondent drinks alcohol;" and (6) "Respondent is disobedient and beyond petitioner's control." Only the first of these allegations is sufficiently specific to satisfy the pleading requirements of FCA § 732(a). That section requires a PINS petition to set forth the particular acts alleged to demonstrate the Respondent's habitual truancy, incorrigibility, ungovernability, or habitual disobedience and to specify the time and place of the alleged acts. See also Matter of Reynaldo R., 73 Misc.2d 390, 341 N.Y.S.2d 998 (Fam.Ct. Kings County 1973); Matter of Andrew R., 115 Misc.2d 937, 454 N.Y.S.2d 820 (Fam.Ct. Richmond County 1982).

Allegations 2, 3, 4, 5, and 6 of this petition fail to meet the statutory requirements of FCA § 732(a). Allegation 2 states that the Respondent has absconded from home three times in the past. It is not sufficient for a PINS petition to allege that the Respondent has absconded on some unidentified occasion. FCA § 732(a) requires the petition to state, at the very minimum, the date of the alleged absconding; otherwise, the Respondent has no information with which to begin to prepare a defense to the charge. Allegations 3, 4, and 5 of the petition, charging the respondent with truancy from school and with smoking cigarettes and drinking alcohol, are similarly deficient. The dates of the truancy are not alleged; as with allegation 2, the Respondent has been given no information with which to defend against the charge. See Matter of Reynaldo R., supra 73 Misc.2d at 394, 341 N.Y.S.2d 998. Moreover, neither the Court nor the Respondent can reasonably assume that the omission of the dates indicates that the alleged truancy has been habitual. As to the alleged drinking of alcohol and smoking of cigarettes, this Court finds no legal authority for the proposition that smoking cigarettes, however harmful, is behavior indicative of a Respondent's "incorrigibility" or "ungovernability;" furthermore, the allegations as to smoking and drinking in this petition lack the specificity required by F.C.A. § 732(a). Allegation 6, alleging that the "Respondent is disobedient and beyond petitioner's control" must also fall for facial insufficiency. This allegation is conclusory and fails to articulate any specific acts upon which to base a PINS adjudication. See Matter of Andrew R., Matter of Reynaldo R., supra.

It has been long settled that a single act cannot form the basis for an adjudication that an individual is a Person In Need of Supervision. Matter of Raymond O., 31 N.Y.2d 730, 338 N.Y.S.2d 105, 290 N.E.2d 145 (1972); Matter of David W., 28 N.Y.2d 589, 319 N.Y.S.2d 845, 268 N.E.2d 642 (1971); see also Matter of Richard K., 35 A.D.2d 716, 314 N.Y.S.2d 1004 (1st Dept.1970); Matter of Denise M.W., 122 A.D.2d 556, 505 N.Y.S.2d 18 (4th Dept.1986); Matter of Erik P., 42 A.D.2d 908, 347 N.Y.S.2d 735 (2d Dept.1973); Matter of Anna AA., 36 A.D.2d 1001, 321 N.Y.S.2d 59 (3rd Dept.1971); cf. Matter of Nelly O., 51 A.D.2d 910, 381 N.Y.S.2d 66 (1st Dept.1976). Because, as noted above, allegation 1 is the only allegation in this petition that satisfies the requirements of FCA § 732(a), the petition must therefore be dismissed unless it can be amended.

The petitioner argues that amendments to the petition should be permitted pursuant to CPLR § 3025(b). The CPLR may be applied to Family Court proceedings where appropriate and as determined on a case-by-case basis. FCA § 165(a); Schwartz v. Schwartz, 23 A.D.2d 204, 259 N.Y.S.2d 751 (1st Dept.1965); subseq. proceedings, 48 Misc.2d 859, 265 N.Y.S.2d 820 (Fam.Ct.N.Y.County 1965); Matter of Carla L., 45 A.D.2d 375, 381, 357 N.Y.S.2d 987, 993 (1st Dept.1974). This Court does not agree with Petitioner's contention that application of the CPLR is appropriate for the purpose suggested in the instant proceeding.

Article 7 is silent on the issue of amending PINS petitions. However, it is clear that, as with juvenile delinquency proceedings filed pursuant to FCA Article 3, PINS proceedings filed pursuant to Article 7 raise significant potential for interference with a juvenile's constitutionally protected liberty. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Matter of Cecilia R., 36 N.Y.2d 317, 319-320, 367 N.Y.S.2d 770, 773, 327 N.E.2d 812, 813-14 (1975); People ex rel. Schinitsky v. Cohen, 34 A.D.2d 1020, 312 N.Y.S.2d 1011 (2d Dept.1970). And, as with juvenile delinquency proceedings, PINS proceedings have been described as quasi-criminal in nature. Matter of Gregory W., 19 N.Y.2d 55, 277 N.Y.S.2d 675, 224 N.E.2d 102 (1966); People ex rel. Schinitsky v. Cohen, Matter of Andrew R., supra; Matter of George C., 91 Misc.2d 875, 398 N.Y.S.2d 936 (Fam.Ct.N.Y. County 1977); Matter of Keith H., 150 Misc.2d 470, 569 N.Y.S.2d 555 (Fam.Ct. Dutchess County 1990). For example, the Family Court Act provides for pre-petition detention in PINS cases, FCA §§ 720 and 728(b), and detention during the pendency of the proceeding, FCA § 739. See also, FCA §§ 304.1, 307.4 and 320.5. In the instant case, in fact, the Respondent was remanded to the New York City Commissioner of Social Services during the initial stages of the proceeding. The Act also contemplates the placement of a person adjudicated to be in need of supervision with a facility designated by the Commissioner of Social Services for an initial period of up to 18 months, and extensions of such placement without the Respondent's consent until the Respondent's eighteenth birthday. FCA §§ 754(1)(c), 756, and 756-a. See also, FCA §§ 352.2, 353.3, 353.4, and 353.5. In addition, the Family Court may issue a warrant for the arrest of a Respondent in both PINS and juvenile delinquency proceedings. See FCA §§ 725 and 312.2. Moreover, many of the due process standards applicable to juvenile delinquency proceedings apply in Article 7 PINS proceedings. The same evidentiary standards and quantum of proof are required at fact-finding and dispositional hearings. FCA §§ 744 and 342.2 (fact-finding hearings), and FCA §§ 745 and 350.3 (dispositional hearings). See also, Matter of Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Matter of Iris R., 33 N.Y.2d 987, 353 N.Y.S.2d 743, 309 N.E.2d 140 (1974); Matter of Richard S., 27 N.Y.2d 802, 315 N.Y.S.2d 861, 264 N.E.2d 353 (1970). Similarly, the provisions of FCA Article 7 parallel the provisions in FCA Article 3 with respect to the grounds for pretrial detention (FCA §§ 739(a) and 320.5), the inadmissibility of statements made during preliminary conferences (FCA §§ 735 and 308.1) and speedy trial (FCA §§ 747, 748 and 340.1).

In view of the foregoing, courts may look to Article 3 for guidance in deciding issues on which Article 7 is silent in order to identify the procedural safeguards that will assure essential due process rights in Article 7 proceedings. FCA § 311.5(1) provides that the Court may order the amendment of a juvenile delinquency petition "[a]t any time before or during the fact-finding hearing ... upon application of the presentment agency and with notice to the respondent and an opportunity to be heard." Such amendments, however, are permitted only with respect to defects, errors, or variances from the proof and only when they do not "tend to prejudice the Respondent on the merits." FCA § 311.5(1). FCA § 311.5(2) specifically excludes amendments to the petition for the purpose of curing either a failure to...