Mario, In re

• Decision Date: 19 January 1971
• Citation: 65 Misc.2d 708,317 N.Y.S.2d 659
• Parties: In the Matter of MARIO.
• Court: New York City Court

Page 659

317 N.Y.S.2d 659

65 Misc.2d 708

In the Matter of MARIO.

Family Court, City of New York, New York County.

Jan. 19, 1971.

[65 Misc.2d 709] Charles Schinitsky, Brooklyn (Office of Law Guardians), by James Goldberg, Brooklyn, for respondent.

OPINION

NANETTE DEMBITZ, Judge:

The major issue in this proceeding under the Family Court Act is the appropriate and constitutional treatment for a 13 year old boy who is a long-time school truant and beyond parental control in regard to his school attendance; he was on this ground adjudicated a 'Person in Need of Supervision' under sections 712, 732 and 752 of the Family Court Act. ¹

On the basis of the facts detailed below, the Court finds that this respondent's placement in the Warwick State Training School for Boys as recommended by his probation officer, will promote his welfare and his psychological and social development. Respondent's attorney argues that the Warwick placement is nevertheless interdicted by Matter of Lloyd, 33 A.D.2d 385, 308 N.Y.S.2d 419 (1st Dept., 1970) and Matter of Jeannette P., 34 A.D.2d 661, 310 N.Y.S.2d 125 (2nd Dept., 1970), each reversing a training school placement of a 'Person in Need of Supervision' (generally and hereinafter abbreviated as 'PINS)'. Respondent further urges the constitutional point, strenuously debated during and ever since the enactment of the Family Court Act in 1962 but not heretofore adjudicated, that the restraint imposed by training school placment of a PINS--a child who has committed no crime under the Penal Law--violates the guarantees of the Fourteenth Amendment of the United States Constitution of due process and equal protection of law.

The Court will first point out the reasons for its conclusions that the Warwick placement promotes respondent's welfare and is consistent with the Appellate Division opinions cited above--conclusions which compel it to rule upon the constitutional issues. It will then explain its ruling that the application to respondent of the training-school provision of the Family Court Act is constitutional. This Court holds that restraint of a parentally uncontrollable school truant by a training school is constitutional if this Court reasonably finds that this restraint will benefit the child, even though the child is only self-harming rather than harmful to others and even though analogous conduct on the part of an adult would not constitute a crime nor

subject the adult to any restraint. I. Benefits of Warwick

State Training School Placement for Respondent

The issue highlighted by Lloyd and Jeannette P. (cited above) is that training school placement is inappropriate for some PINS children, who need merely removal from their own homes to substitute-residences of the type used for children neglected by their parents--generally termed 'open' facilities. However, considering the conduct and patterns of this respondent, not only is no open facility available for him but also placement in the Warwick State Training School appears more desirable.

I. Facts about Respondent

The uncontroverted facts, briefly summarized, are that efforts by this Court and its probation officers over the past 8 months to induce the thirteen year old respondent, a long-time school truant, to resume school, have completely failed. Because of his refusal to attend the public school to which he was assigned, he was accepted in the special individualized day-school maintained by the Office of Probation for truants, and an expert probation officer unsuccessfully attempted to persuade him to try it. While respondent's hours improved for a few weeks following his first court appearances 7 and 8 months ago, since then he remains out of the house most nights until 2 or 3 a.m. despite admonitions from his mother, apparently 'with older boys' but without revealing his whereabouts or activities; he habitually sleeps until 3 or 4 p.m. As to his home circumstances, respondent lives with his mother and siblings in a slum neighborhood on a public assistance budget; he shares a room with an 18-year-old brother who has been out of school and out of work for over a year and is actively homosexual. ²

An open facility to which respondent's probation officer referred him for placement, rejected him on the basis that he required 'a more structured setting,' and the Office of Probation reported that 'in view of his non-cooperation with the several school plans' and other factors, applications to other open facilities would likewise prove futile. In the Court's opinion also, mere removal of respondent from his own home to the improved environment of an open facility would not at this juncture of his life motivate him to attend a school in the community regularly (that being a condition of residence in most open facilities) nor to return therefrom to the facility at the required hour. ³

2. Program of Warwick State Training School ⁴

Warwick State Training School, established 'for the training and care of children' (Social Services Law, sec. 425) and situated on 740 acres of rural land, is a cottage-type institution for boys from 12 1/2 to 15, each cottage housing house-parents and a maximum of 25 boys. The program consists of attendance at a school on the grounds in the morning, with special remedial reading techniques for boys like respondent who read below the third grade level; and vocational training, shop-work, sports, recreation, and counseling for the remainder of the day. The school emphasizes incentives to good performance, and periodic excursions to the local theater, the Catskill Game Farm, dances with a nearby girls' institution, etc. are co-ordinated with the incentive program.

The school superintendent holds a degree as a Master of Social Work as also do the School's Director and Assistant Director of Social Services; a psychologist and six social workers are employed full-time; five additional psychologists a half-day a week; and a psychiatrist part-time daily. Each boy's cottage assignment and program is determined on the basis of periodic staff conferences as to his educational, social and psychological progress. Visits by parents, during which the parents can confer with the child's counsellor or social worker, are encouraged; paroles for weekends and for longer periods, such as a two week Christmas home-visit, are customary.

3. Alleged Undesirable Effects of Training-School

While respondent does not criticize the Warwick program, as such, its concomitant effects are attacked. A training-school placement of a PINS, it is argued, means that a child who has not committed any violation of law harmful to othes, is placed together with dangerous juvenile delinquents, ⁵ and thereby learns aggression and criminality. However, in regard to this street-wise respondent this possibility must be compared to his nightly learning on the streets. Further, it obviously is possible for the training school authorities to segregate PINS in a separate school from delinquents (See Social Services Law, sec. 427(2)), or certainly in separate cottages, classes, and groups in a school, if in their educated and expert judgment such separation is beneficial.

Again, the significance in respondent's life of the stigma which attaches to a training-school returnee, must be evaluated in the light of his present poor prognosis as an unschooled, undisciplined street-running teen-ager. Finally, any sense of injustice that a PINS might suffer from placement with delinquents (against whom criminal acts have been proved) would have less basis for a youth like respondent who has repeatedly violated specific mandates as to school attendance and curfew, in a pattern condemned by community standards. As to the recent statement of the White House Conference on Children, as quoted in the press and by respondent's attorney, that no child under 14 should be placed in a training school, it seems to this Court that the chance of the 13 1/2 year old respondent's benefiting educationally, psychologically and socially from Warwick would be less if he passed yet more months in his present way of life.

II. Restraints Imposed by Warwick Placement

Warwick's premises are not walled or fenced, nor are the rooms or buildings locked except for the outer doors at night and except for the Administration Building. The location of the buildings in the midst of farm country some distance from the highway, serves as a deterrent to boys' eloping; in 1970 out of hundreds of boys at Warwick there were seven elopements. If a boy leaves Warwick without permission or fails to return after a home-visit, an arrest warrant can be issued to return him and in one instance in 1970 handcuffs were used for this purpose. It is in these respects that Warwick differs from the open facilities; it is physically easier for a child to elope from the latter, and if he does so he is not forced to return.

As to management of the boys within the school, there is no 'strip' or 'isolation' room at Warwick like that recently described in connection with a girls' training school, ⁶ nor is the procedure there followed of depriving the child of his clothing and of all occupation or recreation ever used at Warwick. For boys who require removal from their regular program, a dormitory is maintained in the Administration Building (that building being locked) in which there is TV, a pool table, and other equipment.

While courts are reluctant to interfere with the internal management of institutions, they cannot refrain from considering whether practices of a State institution unconstitutionally infringe on an inmate's liberties or invalidate his commitment there. See Lollis, cited note 6; Wright v. McMann, 387 F.2d 519 (C.A.2d, 1967); Sostre v. Rockefeller, 312 F.Supp. 863 (S.D.N.Y., 1970); People ex rel. Ceschini v. Warden, 30 A.D.2d 649, 291 N.Y.S.2d 200 (1st Dept., 1968); People ex rel. Smith v. LaVallee, 29 A.D.2d 248, 250, 287 N.Y.S.2d 601, 604 (4th Dept., 1968); compare Millard...