In The Matter Of Geraldine A., D-16725/09

• Decision Date: 23 November 2010
• Docket Number: D-16725/09
• Citation: In re Geraldine A., 2010 NY Slip Op 52033, D-16725/09 (N.Y. Fam. Ct. Nov 23, 2010)
• Parties: In the Matter of Geraldine A., TIFFANY H., JASKARNJIT S., JAHEEM S., STEPHEN C., JENNIFER S., ANASTASIO K., and LEE ANN H., Persons Alleged to be Juvenile Delinquents, Respondents.
• Court: New York Family Court

2010 NY Slip Op 52033

In the Matter of Geraldine A., TIFFANY H., JASKARNJIT S., JAHEEM S., STEPHEN C., JENNIFER S., ANASTASIO K., and LEE ANN H., Persons Alleged to be Juvenile Delinquents, Respondents.

D-16725/09

Family Court

Of State Of New York

Queens County

Decided on November 23, 2010

John M. Hunt, J.

I

These eight juvenile delinquency proceedings have come before the Court for a dispositional hearing after a determination that each respondent has committed at least one act which, if committed by an adult, would constitute a crime. In each case the Court requested that the New York City Department of Probation conduct an investigation into the juvenile's circumstances and that a written report be prepared for the dispositional hearing.

In each of these cases, as well as others, the Court discovered that the New York City Department of Probation employs a computer-based program which contains an inherent bias which results in more favorable and less severe dispositional recommendations being made to the Family Court for female juvenile delinquents than for similarly situated male juvenile delinquents.

The particulars of each case are summarized below.

1. Matter of Geraldine A. The Presentment Agency filed a juvenile delinquency petition pursuant to Family Court Act §310.1 alleging that the respondent had committed acts which, were she more than 16 years old, ¹would constitute the crimes of Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fifth Degree, and two counts of Attempted Assault in the Third Degree. The factual portion of the petition alleged that the respondent and another teenager attacked a women on the street, pulling the victim's hair, choking her, and punching her in the head with a closed fist several times. The victim's daughter was also attacked and she sustained a bruise to her face. On August 21, 2009 respondent entered an admission to the count charging Attempted Assault in the Third Degree. The Court scheduled the case for a dispositional hearing and ordered that the New York City Department of Probation conduct an investigation into respondent's family and social circumstances and prepare a written report of that investigation for the hearing (Fam. Ct. Act §351.1 [2])² At the dispositional hearing the Court received the report of the Department of Probation, Department of Education records relating to Geraldine and affidavits of witnesses to the underlying incident.

The Department of Probation report indicated that the respondent is 14 years of age, that she was born in Peru, S.A. on April 7, 1995, that she presently resides with her mother in Corona, New York, and is enrolled in the 8th grade at Intermediate School 61 in Corona. The investigating probation officer asked respondent for her version of the incident and that she stated that "she was with some friends when one of these friends... threw some candy at another female individual. A fight followed. Upon observing her friend about to be bitten, Geraldine states she pulled the victim by her shirt to get her away from her friend. The probation report indicated that Geraldine "attended school 84% of the time during the Spring 2009 semester" and that she "had one suspension for an infraction of January 9, 2008." For the 2008-2009 school year, Geraldine's overall grade average was "59%", and that "she passed two of six classes." According to the Probation Officer, respondent's mother stated that she "believes her daughter to be doing well in school thus far this school year. She is confident that Geraldine will pass her classes" and that "her daughter is attending school daily and advises of no disciplinary issues thus far this year." The probation officer noted that although there is gang activity in respondent's neighborhood, there was no indication that she was involved with a gang. Additionally, the officer reported that the respondent has no alcohol, substance abuse, or mental health issues.

Based upon the fact that this incident was Geraldine's first contact with the juvenile justice system, her overall functioning at school, at home and in the community, the ability of her mother to properly supervise her, and her improved performance at school in 2009, the Probation Officer recommended that Geraldine be granted an adjournment in contemplation ofdismissal ("ACD").³ The Court continued the hearing and directed that the Department of Probation interview the known witnesses to the incident, that the New York City Administration for Children's Services be contacted to ascertain the nature of that agency's prior involvement with the respondent's family, and that updated information be obtained from the Department of Education. Additionally, as the Court had recently become aware that the Department of Probation was routinely using a diagnostic-type device known as the "Probation Assessment Tool" ("PAT") in formulating its dispositional recommendations, the Court directed that the Department of Probation produce a copy of the PAT relating to the respondent on the next court date. At the continued hearing the Court received an updated probation report, updated school records, a statement from the victim, police reports relating to the incident, but not the Probation Assessment Tool (PAT). The Court was informed by a Supervising Probation Officer that probation would only release the PAT upon a written order of the Court. The hearing was continued and a written order directing production of the PAT was issued. Counsel for the Department of Probation subsequently appeared before the Court and argued that the PAT was "sensitive", that it created "conflicts"(which were never clearly specified), that the PAT report was exempt from disclosure under the "public interest privilege", and exempt from disclosure under the Freedom of Information Law (Public Officers Law §87 [2] [g]). The Court noted that these exact claims had been advanced by the Department in a juvenile delinquency proceeding in Kings County Family Court in which the Judge had ordered production of the PAT, and that the Appellate Division had affirmed the order directing production of the document by the Department of Probation (Matter of Jasmine G., 35 AD3d 604 [2006]).⁴

The updated probation report contains a victim impact statement and updated information from the Department of Education reflecting that the respondent had been absent from school on three occasions between September 26 and October 8, 2009. The updated report also mentioned that respondent still maintains that she did nothing wrong, and that her actions were somehow justified. The updated report concluded with the Department of Probation reiterating its prior recommendation that Geraldine be granted an ACD. The Court also received correspondence from Safe Horizon, a crime victim assistance agency, which stated that an agency counselor had interviewed the two victims of the underlying incident as well as a third family member who had witnessed the violence. According to Safe Horizon, Mrs. Shu Fang Zheng stated that she suffered a broken fingernail as a result of the unprovoked attack, that a necklace she had been wearing was damaged, and that she also suffered emotional distress as a result of the incident. Zheng's 14-year-old daughter reported that she was punched in the face during the incident which resulted in bruising, she missed one day of school, and was suffering from nightmares and occasional headaches as a result of the incident. Zheng's son who was present during the incident informed the Safe Horizon counselor that "he sometimes feels scared when he is walking down the street".

On the next hearing date the PAT was produced and copies were provided to counsel for the Presentment Agency and the attorney for the respondent. The Court then proceeded to take the testimony of a Supervising Probation Officer concerning the PAT and the utilization of the PAT by the Department of Probation in making dispositional recommendations to the Family Court. According to the Supervising Probation Officer ("SPO"), the PAT was utilized in arriving at the Department's recommendation that respondent be granted an ACD in this case. The SPO explained that the PAT is "a tool to aid the probation officer in making a final assessment" in a juvenile delinquency proceeding, although she was unfamiliar with how the PAT was designed. While the SPO was aware that "an agency formulated the tool", she had no personal knowledge concerning who formulated the evaluative criteria of the PAT, although she understood that probation department personnel had worked with this unnamed agency, later identified as the Vera Institute of Justice, in creating the PAT. According to the SPO, the Department had begun utilizing the PAT in approximately 2003 when it undertook a reform of its mission in juvenile delinquency cases to assist in formulating dispositional recommendations which would be submitted to judges presiding over juvenile delinquency cases.

With respect to the PAT report concerning Geraldine A., the Court noted that it consists of two parts. Part One is designated as the "Questionnaire" and Part Two is designated as the "Summary". Part One is divided into seven categories which are (i) "Demographics"; (ii) "Current Offense"; (iii) "Legal History"; (iv) "Family and Home"; (v) "School"; (vi) "Community and Peers"; and (vii) "Drugs and Alcohol/Mental Health". Each of these seven categories is further subdivided into 34 "Questions" or criteria which appear to form the basis for analysis, although a review of the PAT utilized in this and other cases seems to indicate that several of the criteria are completelydisregarded and not considered at all in conducting the assessment of the respondent. The seven categories of Part One of the PAT and the subdivisions of those categories are as follows:

DEMOGRAPHICS: (1) Current Age; (2) Sex; and (3) Race/ethnicity.

CURRENT OFFENSE: (1) Severity of the top...