David L, Matter of
| Decision Date | 23 May 1983 |
| Citation | 463 N.Y.S.2d 377,119 Misc.2d 477 |
| Parties | In the Matter of DAVID L and Baby Girl L Children Under Eighteen Years of Age Alleged to be Neglected by Anna L and Armando J Respondents. |
| Court | New York Family Court |
The application now before the court to withdraw an admission to charges of child neglect heretofore entered raises important policy considerations in addition to legal issues of apparent first impression.
THE FACTS:
The within proceeding charges the respondents, the mother and step-father of the subject child respectively, with beating the child and causing bruises to the child's ears and temples requiring hospitalization and in being otherwise neglectful by failing to bathe the child or wash his clothes.
In proceedings heretofore had before the undersigned, both respondents, with the concurrence of the law guardian and the prosecuting Assistant Corporation Counsel, entered admissions to so-called "unspecified neglect", a procedural device somewhat analogous to the now obsolete nolle contendere plea formerly applicable to criminal matters, by virtue of which the court assumes consent-jurisdiction to order investigation prior to dispositional hearing. Inasmuch as the statutory scheme contemplates a bifurcated hearing procedure, the net effect of this consent is to eliminate the jurisdictional predicate of a preliminary fact-finding hearing. The admissions were accepted after formal allocution on record and pre-disposition investigation ordered. The enabling statute pursuant to which these admissions were accepted reads as follows: F.C.A. § 1051(a):
"If facts sufficient to sustain the petition are established ... or if all parties consent, the court shall ... enter an order finding that the child is an abused child or a neglected child ..." (emphasis added).
Upon being confronted with pre-dispositional reports which in effect recommend residential placement of the subject children away from their parental home, respondents moved to withdraw their admissions, claiming that there existed an understanding between counsel and the law guardian that ultimate disposition would not encompass residential placement.
WITHDRAWAL OF ADMISSION IN NEGLECT PROCEEDINGS:
At first blush, it would appear that Section 1061 of the Family Court Act dealing with vacatur of prior orders controls this situation. That notion is effectively dispelled by the legislative history of this section which deals with post-disposition proceedings addressed to an otherwise final order and is based upon the sociological reality that in the course of human behavior and interactions, situations may change and thereby render a dispositional order obsolete, (In re S., 80 Misc.2d 217, 362 N.Y.S.2d 921; In re Q., 52 A.D.2d 607, 382 N.Y.S.2d 107; Besharov, Practice Commentaries, McKinney's Consolidated Laws, Family Court Act, 1982-83 Supplement, p. 569).
The only other provision of Article 10 which may be applicable is section 1042 which contemplates a de novo fact-finding hearing as a predicate for continued jurisdiction, but this statute is limited by its terms to a situation where a natural parent defaulted or was unavailable in prior proceedings.
There exists therefore, by virtue of the inapplicability of both these statutes, a procedural vacuum. In this event, FCA § 164 makes the CPLR applicable as an aid in the functioning of this court. Study of the CPLR however, fails to yield any appropriate provision which would govern this situation.
May the court under these circumstances look elsewhere, specifically, to the Criminal Procedure Law? We hold in the affirmative. Where a compendium of procedural statutes makes provision for a situation analogous to one arising in this court we see no reason not to fill an existing procedural vacuum with such statute especially one which has been extensively construed and which may serve as an excellent guide for the future. In so holding, we are aware of Matter of Norman C., 74 Misc.2d 710, 345 N.Y.S.2d 338; Matter of Hakes, 63 Misc.2d 875, 313 N.Y.S.2d 812; Matter of Doe, 44 Misc.2d 678, 255 N.Y.S.2d 33; and Matter of Daniel D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627, all of which contain general language holding that the Criminal Procedure Law (and its predecessor) is not applicable to the Family Court. These cases all involve juvenile delinquency proceedings and the court's response to Matter of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 which mandates a right by right sifting of protections available to an adult toward the end of holding same applicable to delinquency proceedings. The refusal to accept a procedural statutory scheme in toto is consonant with Gault.
Accepting, therefore, the limited applicability of the Criminal Procedure Law, the motion before us is closely analogous to proceedings in courts of criminal jurisdiction to withdraw a plea of guilty. In this connection, the enabling criminal procedure statute provides: (CPL § 220.60 subd. 3):
"At any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment to withdraw such plea, and in such event the entire indictment, as it existed at the time of the plea of guilty, is restored."
The appropriateness of this section of the Criminal Procedure Law to proceedings now before us becomes self-evident when the interaction between the Family Court and criminal courts in the area of child neglect and abuse is considered (cf. FCA § 1014; Penal Law § 260.00 et seq.) and when the position of a child protective agency as statutory prosecutor (cf FCA § 1032) is compared with that of a District Attorney (cf. Peo. v. Van Sickle, 13 N.Y.2d 61, 242 N.Y.S.2d 34, 192 N.E.2d 9).
Applying the Criminal Procedure Law therefore, it appears generally that the grounds supporting a motion to withdraw a plea entered in a criminal court may be categorized as follows:
1) plea allegedly coerced or otherwise involuntarily extracted (Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425; People v. Lascaris, 28 A.D.2d 586, 279 N.Y.S.2d 799);
2) defendant allegedly innocent (People v. Vignera, 29 A.D.2d 657, 286 N.Y.S.2d 557; People v. Klein, 26 A.D.2d 559, 270 N.Y.S.2d 999);
3)...
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