Diane P., Matter of

• Decision Date: 28 October 1985
• Citation: 494 N.Y.S.2d 881,110 A.D.2d 354
• Parties: , 54 USLW 2273 In the Matter of DIANE P. (Anonymous). Westchester County S.P.C.C., Appellant; Aleja P. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

Page 881

494 N.Y.S.2d 881

110 A.D.2d 354, 54 USLW 2273

In the Matter of DIANE P. (Anonymous) Westchester County S.P.C.C., Appellant Aleja P. (Anonymous), Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 28, 1985.

Kenneth Ellman, Yonkers, for appellant.

Thomas Hunter, White Plains, for respondent.

Before MOLLEN, P.J., and LAZER, THOMPSON and BRACKEN, JJ.

LAZER, Justice.

The principal issue here is whether there must be suppression of illegally seized evidence when the matter to be tried is a child protective proceeding under Family Court Act article 10. Upon weighing the likely deterrent effect of the exclusionary rule against its detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children, we conclude that the rule should not be applied in such proceedings. Rather, its deterrence purpose will be adequately served by the fact that any evidence seized pursuant to an illegal search will be inadmissible in any related criminal proceeding.

The events that precipitated this proceeding began on September 9, 1983, when respondent's 13-year-old daughter entered the offices of the Ossining Police Department and complained that her mother had struck her with a broom. Based on this complaint, at approximately three o'clock in the morning of September 10, 1983, a uniformed police officer and several representatives of petitioner Westchester County S.P.C.C. went to respondent's apartment. According to respondent, they awakened her from a sound sleep by banging loudly on her door, obtained her signature on a form consenting to the temporary removal of her daughter, and then undertook a warrantless search of the apartment without obtaining respondent's consent. During the course of this search, they uncovered and seized a broom and a shoe, one or both of which had allegedly been used to beat the child.

Petitioner commenced the instant child protective proceeding several days later. The Westchester County Department of Social Services, which at that time had temporary custody of the child, was allowed to intervene amicus curiae. Upon the department's application, it was permitted to return respondent's daughter to her because the girl wished to go home and was in no immediate physical danger. In a subsequent order, the court also granted the respondent's motion to strike certain parts of the petition and to suppress the broom and the shoe seized by petitioner's agents.

On its appeal from the latter order, petitioner raises several points but the only issue that warrants serious discussion is whether the exclusionary rule should be applied in a child protective proceeding. The dispute over the validity of respondent's consent to the temporary removal of her child is now moot since the child has since been returned to respondent's custody by the appropriate agency. As to the controversy over the earlier child abuse reports, they were not admissible pursuant to Family Court Act § 1046(a) because they had previously been determined to be unfounded and were expunged in accordance with Social Services Law § 442(5). Moreover, petitioner lacks standing to challenge the propriety of that expungement because it has no legally cognizable interest in such reports (cf. Social Services Law § 442[8]; see also, Matter of Monroe v. Blum, 90 A.D.2d 572, 456 N.Y.S.2d 142). This does not mean, of course, that the alleged acts of abuse underlying those reports may not be proven by appropriate and admissible evidence. Finally, we need not decide whether the Family Court erred in refusing to hold a hearing on the issue of consent to the search in light of our determination that in any event the evidence need not be suppressed.

The exclusionary rule was developed and is most often relevant in criminal proceedings (see, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), while a child protective proceeding is civil in nature (People v. Smith, 62 N.Y.2d 306, 476 N.Y.S.2d 797, 465 N.E.2d 336). That is not completely determinative of the issue, however, for the exclusionary rule has upon occasion been applied in certain types of quasi-criminal and civil proceedings (see, e.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170; Monserrate v. Upper Ct. St. Book Store, 49 N.Y.2d 306, 425 N.Y.S.2d 304, 401 N.E.2d 414; People ex rel. Piccarillo v. New York State Bd. of Parole, 48 N.Y.2d 76, 421 N.Y.S.2d 842, 397 N.E.2d 354; Matter of Finn's Liq. Shop v. State Liq. Auth., 24 N.Y.2d 647, 301 N.Y.S.2d 584, 249 N.E.2d 440, cert. denied 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91; Matter of McPherson v. New York City Housing Auth., 47 A.D.2d 828, 365 N.Y.S.2d 862). Nonetheless, it remains true that "[a] violation of a constitutional right may have different consequences depending upon whether the evidence obtained in violation of that right is attempted to be used in criminal or non-criminal proceedings" (People ex rel. Maiello v. New York State Bd. of Parole, 65 N.Y.2d 145, 146, 490 N.Y.S.2d 742, 480 N.E.2d 356).

In determining the applicability of the exclusionary rule, the appropriate inquiry "is whether, accepting the obvious detrimental impact upon the truth-finding process which the exclusionary rule often produces, its accompanying deterrent effect is sufficiently probable to justify its application" (Matter of Mancini v. Codd, 46 N.Y.2d 12, 31, 412 N.Y.S.2d 801, 385 N.E.2d 541). In the course of this inquiry, consideration must be given to such factors as the nature of both the right sought to be protected and the State's interest in the matter, the purpose of the proceeding and the severity of the potential sanctions that could result from the proceeding, and the purpose of the illegal search and its relationship to the proceeding in which the rule is sought to be invoked (see, e.g., Monserrate v. Upper Ct. St. Book Store, supra; Matter of Finn's Liq. Shop v. State Liq. Auth., supra, 24 N.Y.2d, at pp. 653-55, 301 N.Y.S.2d 584, 249 N.E.2d 440; Matter of Leogrande v. State Liq. Auth., 25 A.D.2d 225, 268 N.Y.S.2d 433, revd. on other grounds 19 N.Y.2d 418, 280 N.Y.S.2d 381, 227 N.E.2d 302; see also, Tirado v. Commissioner Internal Rev. Serv., 689 F.2d 307, cert. denied 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484; Matter of Mancini v. Codd, supra, 46 N.Y.2d, at pp. 31-32, 412 N.Y.S.2d 801, 385 N.E.2d 541). Applying these principles, we conclude that the exclusionary rule should not be utilized in a child protective proceeding.

Undisputably, the question is a close one. We note that petitioner's agents entered respondent's home to obtain her consent to the temporary removal of the child. Thus, the subsequent search was directly related to the child protective proceeding. The existence of such a relationship is a factor which ordinarily militates in favor of application of the exclusionary rule (compare Matter of Finn's Liq. Shop v. State Liq. Auth., supra, with Matter of Mancini v. Codd, 46 N.Y.2d 12, 31-32, 412 N.Y.S.2d 801, 385 N.E.2d 541, supra ). We now hold, however, that the State's overwhelming interest in protecting and promoting the best interests and safety of minors in a child protective proceeding far outweighs the rule's deterrent value.

Child abuse has become an ever greater problem in our society in recent years as the number of cases reported continues to increase at a precipitous rate (New York State Dept. of Social Servs., Central Child Abuse Maltreatment Register, Table of Reports Registered, 1974-1984; New York Times, Feb. 17, 1985, section 1 at p. 30, col. 1; Memorandum of Legislative Representative of City of...