Dorothy D., Matter of

• Decision Date: 15 May 1978
• Parties: In the Matter of DOROTHY D., (anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 876

404 N.Y.S.2d 876

62 A.D.2d 473

In the Matter of DOROTHY D., (anonymous), Appellant.

Supreme Court, Appellate Division,Second Department.

May 15, 1978.

William E. Hellerstein, New York City, and Charles Schinitsky, Brooklyn (Barbara H. Dildine and Claire A. Thomas, Brooklyn, of counsel), for appellant.

Allen G. Schwartz, Corp. Counsel, New York City (Susan L. Bloom and Leonard Koerner, New York City, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, RABIN and SHAPIRO, JJ.

SHAPIRO, Justice.

The petitioner is a 12-year-old girl whose mother and a neighbor were apparently feuding. The mother swore out a criminal complaint against the neighbor in the Criminal Court of the City of New York. By way of retaliation, as the record makes clear, the neighbor then charged the appellant with being a juvenile delinquent. At intake in the Family Court and before the neighbor filed a juvenile delinquency petition, she offered to withdraw the charge against the infant, if the latter's mother would withdraw her complaint in the Criminal Court. The mother refused to do so. A delinquency petition was then filed by the neighbor.

Thereafter, the mother withdrew the complaint in the Criminal Court and the neighbor's attorney then wrote the Corporation Counsel that the neighbor would not appear on the return date of the petition and asked that it be withdrawn. That was done.

The Law Guardian, on behalf of the infant, then moved for an order directing the Family Court to expunge her name from the docket books, file cards and records kept both by it and the Probation Department and to have all copies of the delinquency petition, endorsements and orders placed in a sealed file to be opened only by order of the court upon notice to appellant and her attorney.

The basis of the application was that while in theory the records of the Family Court are confidential, they are not so in actual practice and the availability of such records could damage the infant's employment prospects and in other ways do her harm.

In opposition, the General Counsel for the Probation Department admitted that as a matter of policy the department did "not oppose an expungement application in those situations where a matter has been adjusted in intake or where there has been no finding after a hearing on the merits, and the child has reached his 16th birthday".

Although the infant had no previous contact with any court, the Family Court Judge, in denying the application, gave as one of his reasons that he had looked at the probation folder and that there is "a family history here of a sibling having a problem * * * and there's also some history in the probation folder about the parent, and consequently I intend to deny your application, without prejudice to renewal when the child reaches the age of sixteen" (emphasis supplied).

He then added:

"I feel that the entire social history of a family individuals the nature of the allegations here, and the facts that we have gleaned from the Probation record are essential to Probation, and consequently to the Court, in determining dispositions if ever they should arise.

"To grant this Motion I think would * * * possibly tie their hands to a degree.

"I am denying the Motion without prejudice to the right to renew when the child reaches sixteen years of age."

The appellant frames the question here presented as:

"Whether the judge's refusal to expunge and seal appellant's Family Court record after the complainant withdrew a juvenile delinquency petition against her was an abuse of discretion and violated appellant's constitutional rights."

While it is tempting, in view of the comprehensive brief submitted by the appellant on the constitutional issues involved, to treat the question of whether the Family Court's refusal to expunge and seal the record violated her constitutional rights, I feel that in the posture of this case it would be inappropriate to do so.

The respondent concedes that "the Family Court has inherent power over its own records, and could have ordered them sealed and possibly expunged" and that "these records will be maintained only until the appellant is sixteen years old, at which time, the motion to expunge will not be opposed." With that concession in the case, and recalling that the order of the Family Court denied the appellant's motion to expunge without prejudice to renewal when she reaches the age of 16 years, it becomes readily apparent that the respondent does not dispute the right and power of the Family Court, under the circumstances here present, not only to seal the records, but also to expunge those which are sought to be expunged.

We therefore come directly to the question of whether the Family Court abused its discretion in refusing to grant the infant's application. We hold that it did, particularly in the light of the fact that its determination was predicated, in part, on guilt by association the existence of a sibling's record.

Succinctly put, we have here a situation where, out of pique, an unjustified complaint is made against a minor in the Family Court and, at intake, it is not withdrawn solely because of the refusal of the minor's mother to withdraw a complaint which she had instituted prior thereto in the Criminal Court.

Under such circumstances, we see no reason why the motion should not have been granted. To sustain the Family Court's action in this case would be tantamount to saying that any unjustified complaint against a minor by a disgruntled neighbor, which completely lacked merit and which was subsequently withdrawn, might forever thereafter tarnish the reputation of the minor and endanger his or her future progress. We cannot subscribe to such a rule of...