J. R., Matter of

• Decision Date: 10 August 1976
• Citation: 87 Misc.2d 900,386 N.Y.S.2d 774
• Parties: In the Matter of J R, et al., Children under sixteen years of age alleged to be abused by Pedro and Ramona R, et al., Respondents.
• Court: New York Family Court

Page 774

386 N.Y.S.2d 774

87 Misc.2d 900

In the Matter of J R, et al., Children under sixteen years of age alleged to be abused by Pedro and Ramona R et al., Respondents.

Family Court, City of New York, Bronx County.

Aug. 10, 1976.

W. Bernard Richland, Corp. Counsel, New York City, Hyman Frankel, Sp. Asst. by Dennis P. Casey, trial counsel, Alan G. Krams, New York City, on the brief, for petitioner.

Donald Grajales, Bronx Legal Services Corp., New York City (David M. Victor, New York City, of counsel), for respondent mother.

Edgar G. Walker, New York City, for respondent father.

Charles Schinitsky, Brooklyn, by Paul McAllister, New York City, for the children.

Louis J. Lefkowitz, Atty. Gen., State of New York Pro se, by David L. Birch, New York City, of counsel, intervenor.

STANLEY GARTENSTEIN, Judge.

The within child protective proceedi attacks the constitutionality of certain key provisions of Article 10 of the Family Court Act, the so-called 'Children's Bill of Rights' dealing with neglected and abused children.

Three children are alleged to be abused: John, born May 2, 1975; Izquierdo, born March 23, 1974; and Virgin, born September 21, 1972. John is alleged to be the 'target child' and the two older children are claimed to be abused on the theory that upon removal of a 'target child,' the focus of the abuse shifts to other children. This theory, a working tool of social workers and psychologists, has received formal legal recognition. (Matter of Edwards, 70 Misc.2d 858, 335 N.Y.S.2d 575, Family Ct. Act § 1046(a)(i).)

THE FACTS:

On August 9, 1975, three month old John was admitted to Jacobi Hospital by his mother, a respondent herein. She gave an admitting history of having found him unconscious on the floor with his sister Virgin standing over him. When mouth to mouth resuscitation failed, a neighbor was summoned and an ambulance called.

The admitting physician testified that on initial examination, John was in a tonic state of seizure and unresponsive, consistent with traumatic head injuries. Intravenous valium brought on a response after which the infant was treated for subdural hematomas on both sides of the head; linear fracture of the skull; retinal hemorrhage; and bruises on both cheeks and the lower left portion of the abdomen. The only explanation of these injuries was the possibility that Virgin, in a fit of jealousy, threw him to the floor and beat him. ¹

It is undisputed that the third child was in Camden, New Jersey, with his father when the injuries occurred. The father was named as a respondent, but no case against him was presented.

On August 12, 1975, the Court ordered an emergency removal of all children. Virgin was returned pending trial in subsequent proceedings and the two younger children are still at the New York Foundling Hospital pending disposition of this cause on its merits.

The unexplained injuries to John constitute the entire case.

PERTINENT STATUTES:

The Family Court Act § 1046(a) states:

In any hearing under this article (Article 10)

(ii) proof of injuries sustained by a child or of the condition of a child of such nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible;

Subsection b of § 1046 states:

In a fact-finding hearing (i) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence;

CONSTITUTIONAL ATTACK:

Respondent mother moves for dismissal of the petition and return of her children arguing that with the entire case resting on the presumption established by FCA § 1046(a)(ii), a finding of abuse in reliance on this presumption would deprive her of her constitutionally guaranteed right to her children without due process of law. It is further argued that both Section 1046(a)(ii) which establishes this presumption, as well as Section 1046(b)(i) which establishes a preponderance of evidence as the measure of proof are unconstitutional on their face and must be struck down by the trial court even recognizing the traditional injunction to trial courts to exercise restraint on constitutional issues in deference to courts of appeal (See National Psychological Association v. University of the State of New York, 18 Misc.2d 722, 188 N.Y.S.2d 151, affd. 10 A.D.2d 688, 199 N.Y.S.2d 423, affd. 8 N.Y.2d 197, 203 N.Y.S.2d 821, 168 N.E.2d 649, appeal dism. 365 U.S. 298, 81 S.Ct. 691, 5 L.Ed.2d 688).

Faced with this constitutional challenge, the Court as required by CPLR Section 1012(b), has given notice to the Attorney General of the State of New York who has appeared Pro se in defense of the statute.

CONSTITUTIONALITY: PROVINCE OF TRIAL COURT V. APPELLATE COURT:

It has been long settled in New York that an enactment of the Legislature is presumed constitutional and will be struck down only when its 'unconstitutionality is shown beyond a reasonable doubt.' Defiance Milk Products Co. v. Du Mond, 309 N.Y. 537, 541, 132 N.E.2d 829, 830 (1956); Accord, Nettleton v. Diamond, 27 N.Y.2d 182, 315 N.Y.S.2d 625, 264 N.E.2d 118 (1970) app. dism. 401 U.S. 969, 91 S.Ct. 1201, 28 L.Ed.2d 319.

The limited power of trial courts to strike down a state statute as unconstitutional has been stated repeatedly. The Court, in People v. Estrada, 80 Misc.2d 608, 610, 364 N.Y.S.2d 332 (Sup.Ct., Crim.Term, Kings Co.1975) stated:

"Particularly, courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and the invalidity of the act is apparent on its face.' (National Psychological Assn. v. University of the State of N.Y., 18 Misc.2d 722, 725--726, 188 N.Y.S.2d 151, 156, affd. 10 A.D.2d 688, 199 N.Y.S.2d 423, affd. 8 N.Y.2d 197, 203 N.Y.S.2d 821, 168 N.E.2d 649, app. dsmd. 365 U.S. 298, 81 S.Ct. 691, 5 L.Ed.2d 688). Courts of original jurisdiction should not set aside a statute as unconstitutional unless that conclusion is inescapable. (People v. Elkin, 196 Misc. 188, 80 N.Y.S.2d 525; Bohling v. Corsi, 204 Misc. 778, 127 N.Y.S.2d 591, affd. 306 N.Y. 815, 118 N.E.2d 823). The tendency is to leave such questions to appellate tribunals (City of New Rochelle v. Echo Bay Waterfront Corp., 182 Misc. 176, 46 N.Y.S.2d 645, affd. 268 App.Div. 182, 49 N.Y.S.2d 673, affd. 294 N.Y. 678, 60 N.E.2d 838).'

People v. Lofton, 81 Misc.2d 572, 366 N.Y.S.2d 769 (Sup.Ct., Crim.Term, kings Co. 1975); Dunbar v. Dunbar, 80 Misc.2d 744, 364 N.Y.S.2d 699 (Sup.Ct., Spec.Term, Suffolk Co.1975).

It is clear that while trial courts are thus enjoined from reaching for an issue of constitutionality, or from considering it when any other basis exists, that when unavoidably confronted with the issue, they are morally and legally bound to consider it and rule accordingly.

The Court finds that it has no choice, but to rule on the issue of constitutional validity which squarely confronts it. No direct evidence of abuse is before the court. The injuries are consistent only with sustained wide-spread assault and by themselves negate the possibility of a 'singlefall' or a 'flash-beating' administered by a jealous three year old's physical capabilities. Moreover, even conceding the mother's explanation and assigning unwarranted credibility to it, her sheer act of leaving the baby in a position where this or similar injuries could be proximately anticipated shows her actions wanting of that standard of care required by law. In either event, the existence of the statutory presumption is crucial to a finding of abuse or neglect.

MATTER OF ALSAGER:

Before moving on to a consideration of constitutionality, reference must be made to what is rapidly becoming the most cited case on this issue in recent years. That this holding may bear staggering ramifications in this state, is illustrated by the fact that all parties to this litigation make reference thereto; and by the further fact that certain definitions of neglect which were struck down therein bear resemblance to definitions contained in Article 10 and elsewhere.

In 1975, the United States District Court for the Southern District of Iowa was presented with a constitutional challenge to the Iowa statute dealing with termination of parental rights (Matter of Alsager v. District Court of Polk County, 406 F.Supp. 10). This challenge had been presented in prior proceedings (384 F.Supp. 643) in which the District Court declined to rule thereon until remand by the Circuit Court of Appeals (518 F.2d 1160, 8 th Circuit) with an appropriate direction. In holding the Iowa statute unconstitutional, the Alsager Court relied upon (A) its defective vagueness and the fact that the Iowa Supreme Court had never judicially restricted its application; and, (B) its failure to accord procedural due process in requiring 'clear and convincing evidence' as opposed to the 'preponderance standard then in effect.'

Further consideration of this holding will appear herein when appropriate. It is germane to note however that while FCA § 1046(b)(i) establishes the 'preponderance' standard, the Appellate Division of the First Department in an opinion subsequent to Alsager, appeared to be judicially approving the more restrictive Alsager standard by requiring 'strong and convincing proof of unfitness on the part of the parent.' (Matter of Gonzalez, 51 A.D.2d 527, 379 N.Y.S.2d 87). It is as yet impossible to ascertain whether or not the First Department was responding to Alsager, whatever its ultimate result on appeal, and/or whether or not it even considered same. ²

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