John Children, In re

• Decision Date: 12 December 1969
• Citation: 306 N.Y.S.2d 797,61 Misc.2d 347
• Parties: In the Matter of Three JOHN * CHILDREN, Infants under the age of Sixteen Alleged to be Abused. In the Matter of the SMITH * CHILD, An Infant under the age of Sixteen Alleged to be Abused. In the Matter of the FORD * CHILD, An Infant under the age of Sixteen Alleged to be Abused. In the Matter of Two GREY * CHILDREN, Infants under the age of Sixteen Alleged to be Abused. In the Matter of Two BOND * CHILDREN, Infants under the age of Sixteen Alleged to be Abused.
• Court: New York Family Court

Page 797

306 N.Y.S.2d 797

61 Misc.2d 347

In the Matter of Three JOHN ^* CHILDREN Infants under the age of Sixteen Alleged to be Abused. In the Matter of the SMITH * CHILD, An Infant under the age of Sixteen Alleged to be Abused. In the Matter of the FORD * CHILD, An Infant under the age of Sixteen Alleged to be Abused. In the Matter of Two GREY * CHILDREN, Infants under the age of Sixteen Alleged to be Abused. In the Matter of Two BOND * CHILDREN, Infants under the age of Sixteen Alleged to be Abused.

Family Court, Citywide Child Abuse Term.

Dec. 12, 1969.

Douglas Besharov, Andrew Freedman, Harold A. Mayerson, and Herbert O. Brown, Police Counsel, appearing for children in all cases.

Hortense R. Landau, New York City, appearing for petitioner New York SPCC in the 'John' proceeding.

J. Lee Rankin, Corp. Counsel of City of New York, Samuel Felder, Asst. Corp. Counsel, appearing for petitioner Bureau of Child Welfare of Department of Social Services, petitioner by Myra L. Graubard, New York City, of counsel, in the 'Smith' proceedings, by Peter Steckler, of counsel, in the 'Grey' proceedings; and by Sara Schecter, of counsel, in the 'Ford' and 'Bond' proceedings.

Fred Samuel, New York City, Chief Counsel, Harlem Assertion of Rights by Carl O. Callender, Brooklyn, of counsel for respondent 'John' parent.

Shyleur Barrack, Legal Aid Society, by Michael M. Lippman, New York City, of counsel for respondent 'Smith' parent.

Claudius S. Matthews, by Arthur S. Rosen, of counsel, appearing for respondent 'Ford' parent.

Milton L. Williams, Hunts Point Legal Services, New York City, by Mark P. Denbeaux, Hunts Point Legal Services, New York City, of counsel for respondent 'Grey' parent.

Goldstein & Goldstein, by Hyman E. Goldstein, New York City, for respondent 'Bond' parent.

MILLARD L. MIDONICK, Judge.

The common issue arising in all of these cases concerns the constitutionality of the new article 10 of the Family Court Act insofar as it affects the presumptively mandated removal of custody of children from a parent if the parent is adjudged to be addicted to narcotics.

On June 1, 1969, Chapter 264 of the Laws of 1969 became effective, enacting a new article 10 of the Family Court Act, establishing a new proceeding in the Family Court for the protection of 'abused' children.

Hitherto article 3 of the Family Court Act has provided for protection of 'neglected' children. Any child who is 'abused' is also 'neglected' but many forms of non-intentional 'neglect', or neglectful conduct not resulting in 'serious' physical or mental injury, do not amount to 'abuse'.

In response to mounting concern that children exposed to more serious forms of injury than ordinary neglect require legislatively mandated special protective procedures, hospitals, doctors, social services workers, school officials, court clerks, probation officers and judges are mandated to expedite reports and hearings, and (presumptively) to remove or withhold children from the custodians responsible. Neglect proceedings are handled without necessarily expediting each case, and removal of the child from the erring parent is discretionary instead of presumptively mandatory as in the cases of abuse.

An 'abused child' is defined as 'a child under the age of sixteen years who has had serious physical or mental injury inflicted upon him by other than accidental means or who is in the care and custody of a parent or other person who has been adjudicated a narcotic addict.' Section 1012.

That an 'abused' child is always also 'neglected' can be readily seen from the definition in the old section 312 which still reads:

§ 312. 'Neglected child'

A 'neglected child' means a male less than sixteen years of age or a female less than eighteen years of age

(a) whose parent or other person legally responsible for his care does not adequately supply the child with food, clothing, shelter, education, or medical or surgical care, though financially able or offered financial means to do so; or

(b) who suffers or is likely to suffer serious harm from the improper guardianship, including lack of moral supervision or guidance, of his parents or other person legally responsible for his care and requires the aid of the court; or

(c) who has been abandoned or deserted by his parents or other person legally responsible for his care.

One serious inconsistency which should be corrected by the Legislature, concerns equivalent age coverage for neglected and abused children. It is unsupportable that a girl over 16 but under 18 years of age can be 'neglected' but not 'abused'. If she can be neglected during this vulnerable two year period, how much more indefensible that she can be 'abused' without the additional help under article 10? Beatings and sexual molestation by parents are quickly exposed as 'abuse' for girls under 16, and should be so for those under 18. These two critical years are the school 'drop-out' age, when over-reaction by parents is not uncommon. Indeed article 7 should be expanded to help parents control ungovernable boys up to age 18, as girls are now; such supervisory power could be used for example to require boys to continue their education, if parents are so minded, and if the Family Court judge concurs. Parents are entitled to the assistance of the power of this court, for their boys as well as girls, through age 18.

The five proceedings before the court herein concern only the narcotic addict parent aspect of this new statute, since this aspect alone has come under direct constitutional attack almost daily by representatives of parents, and its meaning is less clear and might be subject to more arbitrary application than the provisions forbidding abuse by parental serious physical and mental injury to their children.

A motion to dismiss one of these proceedings ('John,' E 245--7/1969) is expressly based upon failure to allege that the parent 'has been adjudicated' a narcotic addict in a proceeding prior to the one at bar, and that therefore the petition fails to state a cause of action. This motion is denied. We hold that the Legislature intended by the words 'has been adjudicated a narcotic addict', that the Family Court can so adjudicate in the proceeding before us. Section 1012. The phrase 'has been adjudicated' means adjudicated prior to our finding of child abuse, not prior to the filing of the child abuse petition herein, and therefore this petition is not premature. Preferably section 1012 should be amended, to conform with this construction, to read 'is a narcotic addict * * *.'. This intent is evidenced, even as the article now reads, by the cognate section 1019 which provides that '(u)pon the filing of a petition under this article which contains an allegation that' the child's custodian 'is addicted to the use of narcotic drugs, the court shall hold a preliminary hearing to determine the sufficiency of such allegation and if the court, at the conclusion of such hearing, determines that the temporary removal of such child from his home is in the best interest of the child, an order shall be entered providing for the temporary placement of the child.' If thereafter this court must await a jury's verdict and judgment of narcotic addiction from another court, our further proceedings would be virtually unnecessary and meaningless because under Mental Hygiene Law such persons are required to be removed from the community until they are no longer addicted. Indeed, section 206--b of the Mental Hygiene Law forbids that 'facts or proceedings relating to * * * certification or treatment of any such narcotic addict be used against him in any proceeding in any court, * * *.' Consequently, if Family Court cannot adjudicate the issue of narcotic addiction, no court can for purposes of child abuse. Mental Hygiene Law, sections 207, 208 et seq. Moreover, a substantial number of our drug addiction petitions proceed to admissions of such allegations in open court, after appropriate warnings; surely these are cases further illustrating that Family Court final adjudications of narcotic addiction are intended to be appropriate. Several such parents asked this court for help and are now required to remain at Stuyvesant Square Residential Center of the Salvation Army for a period not to exceed 18 months; others can be considered for intake by Odyssey House, by Phoenix Centers, and other licensed establishments for residential care for this malady.

We also hold that the 'adjudication' of 'narcotic addiction' when made in Family Court, requires no jury trial such as is mandated by the Court of Appeals in People v. Fuller, 24 A.D.2d 292, 300 N.Y.S.2d 102, 248 N.E.2d 17, and in Matter of James, 22 N.Y.2d 545, 293 N.Y.S.2d 531, 240 N.E.2d 29. Compare Matter of Irving 'S' v. Larry 'S', 60 Misc.2d 359, 303 N.Y.S.2d 166. Unlike the proceedings under the Narcotic Addiction Control Law (Mental Hygiene Law, sections 207, 208 et seq.), the adjudication in Family Court does not lead to 'incarceration' for rehabilitative therapy of the addict, whether for the three year or the five year duration. No power to supervise or restrain the liberty of the addict is given to the Narcotic Addiction Control Commission as a result of our Family Court finding. The primary consequence flowing from our finding of narcotic addiction, which results in many of our proceedings including four of the five cases before us now, is to protect the child of such a parent by separating the child from the parent (i.e. by removal of the child, unless the presumption is rebutted as in one of these cases), and by conditioning the return of the child to the parent upon safeguards such as safe chaperonage, therapy, freedom from habituation or use of narcotics, and official supervision of the child's home. All of these remedies are administered in the community, not in confinement, with the exception of this court's power during or after a judicial hearing, to remand to a hospital a parent or...