Chin, Application of

• Decision Date: 31 December 1963
• Citation: 41 Misc.2d 641,246 N.Y.S.2d 306
• Parties: Application of Gloria CHIN as Guardian ad Litem of Victoria Louis Yen and Georgia Priscilla Yen, infants over the age of 14 years, Plaintiff, for an Order pursuant to Article 78 CPLR directed to George K. Wyman as Administrator for the State of New York of the Interstate Compact on Juveniles, the Family Court of the State of New York, County of Westchester, Honorable Robert E. Dempsey, individually and as a Judge of said Court, George Yen and Meiling Yen, Defendants.
• Court: New York Supreme Court

Page 306

246 N.Y.S.2d 306

41 Misc.2d 641

Application of Gloria CHIN as Guardian ad Litem of Victoria

Louis Yen and Georgia Priscilla Yen, infants over the age of

14 years, Plaintiff, for an Order pursuant to Article 78

CPLR directed to George K. Wyman as Administrator for the

State of New York of the Interstate Compact on Juveniles,

the Family Court of the State of New York, County of

Westchester, Honorable Robert E. Dempsey, individually and

as a Judge of said Court, George Yen and Meiling Yen, Defendants.

Supreme Court, Westchester County.

Dec. 31, 1963.

Rabinowitz & Boudin, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen., Albany, for respondents.

GERALD NOLAN, Justice.

This proceeding in the nature of prohibition is brought by the guardian ad litem of two infants, one 17 and the other 15 years of age, to restrain the respondent Wyman, as the New York State Administrator of the Interstate Compact on Juveniles (see L.1955, ch. 155, McK.Unconsolidated Laws, § 1801), the Family Court of the State of New York, County of Westchester, and the Honorable Robert E. Dempsey, a Judge of that Court, from enforcing a requisition issued by the Fourth District Court of Plymouth, Massachusetts, pursuant to the compact, for the return of the infants to the State of Massachusetts. Prior to June 17, 1963, the infants resided with their parents in Mattapoisett, Massachusetts. It is alleged in the petition and supporting affidavits that because of conditions in the home which caused them to fear for their physical safety and moral welfare, and with good and just cause they left the home of their parents and came to the home of the petitioner, their older sister, who resides in Westchester County. The requisition which they seek to restrain was thereafter issued on the application of their parents and was forwarded to the defendant Wyman, who forwarded it, and the supporting papers to the Family Court, in Westchester County, which issued a subpoena to the petitioner to obtain information with respect to the infants. In response thereto petitioner appeared before the Honorable Robert E. Dempsey, a judge of the Court, and the parents of the infants likewise appeared by counsel. Petitioner's motion to quash the subpoena on the ground that the court had no jurisdiction was denied, and, as a condition to the granting of an adjournment, the infants were required to and did appear before the court, were declared to be wards of the court, and an adjournment was granted to enable petitioner to test the legality of the proceeding. Thereafter this proceeding was commenced and simultaneously petitioner applied to this court in a separate proceeding to have custody of the infants awarded to her on the ground that the grant of custody to their parents would endanger their welfare and safety.

It is alleged in the amended petition in this proceeding that the health, safety and morals of the infants will be endangered if they are returned to their parents, who, petitioner asserts, are unfit to have their custody. It is also asserted that enforcement of the requisition is without and in excess of the jurisdiction of the defendants Wyman, the Family Court and the Judge, because the compact pursuant to which it was issued is repugnant to the due process clauses of the Constitutions of the State of New York, and of the United States, in that it deprives persons, and particularly these infants, of their liberty, without notice or opportunity to be heard, is repugnant to Article I, Section 10 of the Constitution of the United States in that it is a compact between states which has not received the approval of Congress, is further repugnant to the Fourteenth Amendment of the Constitution of the United States in that it denies the infants equal protection of the law and abridges their privileges and immunities as citizens, that it violates Article VI of the New York State Constitution in that it attempts to divest the Supreme Court of the State of New York of its constitutional jurisdiction and to give judicial power to the respondent Wyman, who is not a judge or justice of any court. It is also asserted that the enforcement of the compact is not within the jurisdiction of the Family Court or a judge thereof, as provided by law.

The Attorney General has moved to dismiss the petition, and it is my understanding that the motion may be considered as addressed to the amended petition, on the grounds that it is insufficient to entitle the petitioner to any relief, and on the further ground that with respect to the respondent Wyman the petition reveals no action, inaction, or determination on his part which authorizes relief.

The Interstate Compact on Juveniles was executed on behalf of the State of New York pursuant to Chapter 155 of the laws of 1955 (See Unconsolidated Laws, Sections 1801-1806), and clearly states its purpose, based on a finding that juveniles who are not under proper supervision, or who have absconded, escaped or run away are likely to endanger their own health, morals and welfare, and the health, morals and welfare of others, to provide for the welfare and protection of juveniles and of the public with respect (inter alia) to the return, from one state to another, of non-delinquent juveniles who have run away from home. It is provided that in carrying out the provisions of the compact the party States shall be guided by the non-criminal, reformative and protective policies which guide their laws concerning delinquent, neglected, or dependent juveniles, generally, that the party States shall observe their respectiver responsibilities for the prompt return of juveniles who become subject to the provisions of the compact, and that such provisions shall be reasonably and liberally construed to accomplish its purposes. It is further stated that the remedies and procedures provided by the compact shall be in addition to, and not in substitution for other rights, remedies and procedures.

Article IV of the compact, with which we are here concerned, deals with the return of runaways. It provides that the parent, guardian, person or agency entitled to legal custody of a juvenile who has not been declared delinquent but who has run away may petition the appropriate court in the demanding State (any court having jurisdiction over delinquent, neglected or dependent children) for the issuance of a requisition for his return. The petition, besides meeting other requirements, must state facts tending to show that the juvenile is endangering his own welfare or the welfare of others. The judge to whom the application is made may decide either after or without a hearing whether or not it is in the best interest of the juvenile to compel his return to the State. If he so decides he may present to the appropriate court or to the executive authority of the State where the juvenile is alleged to be located a written requisition for his return. Upon receipt of such requisition the court or the executive authority to whom the requisition is addressed shall issue an order directing that the juvenile be taken into custody and detained. No juvenile so detained may be delivered over to the officer designated by the demanding court to receive him, however, unless he shall first be taken before a judge of a court having jurisdiction over delinquent, neglected or dependent children, who shall inform him of the demand for his return, and who may appoint counsel or guardian ad litem for him. If the judge finds that the requisition is 'in order' he shall deliver such juvenile over to the officer whom the court in the demanding State shall have appointed to receive him. The judge may, however, fix a reasonable time to be allowed for the purpose 'of testing the legality of the proceeding.'

Concededly the compact has not received the approval of Congress. Nevertheless, it is not repugnant to the provisions of the third clause of Article I, Section 10 of the Constitution of the United States insofar as they provide that no state shall, without the consent of Congress, enter into any Agreement or Compact with another State. The constitutional prohibition does not apply to every possible compact or agreement between one State and another, but is directed to the formation of any combination tending to increase the political power in the State which may encroach upon or interfere with the just supremacy of the United States (Virginia v. Tennessee, 148 U.S. 503, 519, 13 S.Ct. 728, 37 L.Ed. 537; Landes v. Landes, 1 N.Y.2d 358, 365, 153 N.Y.S.2d 14, 19, 135 N.E.2d 562, 566). The compact on juveniles has no such purpose or effect.

Neither is the compact repugnant to the provisions of the Fourteenth Amendment of the United States Constitution in the sense that it denies these infants equal protection of the law or abridges their privileges and immunities as citizens of the United States. The equal protection clause of the Fourteenth Amendment does not take from the States the power to classify in the adoption of laws designed to implement the authority of the State as parens patriae or to protect the public safety and welfare, and it does not appear that there has been any arbitrary or unreasonable classification in the compact, insofar as it applies to runaways. Since the compact applies uniformly to all runaways from states which are parties to it, petitioner may not complain that the infants have been denied equal protection of the law. Neither does it appear that any of their privileges or immunities have been abridged if they are properly subject to the restraint authorized by the compact. A more serious question is presented, however, by their claim that they have been denied due process of law because the compact does not provide for notice and a hearing at which they may establish that they are not properly subject to such restraint, and that their return to the demanding state will not be in their best interest, but will endanger their...