Matter of Jennifer G.

• Decision Date: 21 July 1999
• Citation: 182 Misc.2d 278,695 N.Y.S.2d 871
• Court: New York Family Court
• Parties: In the Matter of JENNIFER G., a Person Alleged to be in Need of Supervision, Respondent.<SUP><A onclick=scife_fn_clicked(); href="#[1]" name=r[1]>[1]</A></SUP><BR>In the Matter of JENNIFER G., a Person Alleged to be a Juvenile Delinquent, Respondent.

182 Misc.2d 278

695 N.Y.S.2d 871

In the Matter of JENNIFER G., a Person Alleged to be in Need of Supervision, Respondent.^[1] In the Matter of JENNIFER G., a Person Alleged to be a Juvenile Delinquent, Respondent.

July 21, 1999.

L. G., petitioner pro se.

Michael D. Hess, Corporation Counsel of New York City, Jamaica (Norman Corenthal of counsel), presentment agency.

Steven Palumbo, Rockville, for respondent.

OPINION OF THE COURT

GUY P. DE PHILLIPS, J.

On April 21, 1998, petitioner L. G., the father of the then 12-year-old respondent Jennifer G., filed a petition under article 7 of the Family Court Act seeking to have her adjudged a person in need of supervision (PINS). Upon respondent's return on a warrant and joinder of issue, she was remanded to the custody of the Commissioner of Social Services. Respondent continually absconded from the custody of the Commissioner in violation of the court's remand orders over a period commencing April 22, 1998 and ending May 5, 1999, during which an additional nine warrants were issued for her arrest. In view of her recalcitrance, Corporation Counsel filed a Family Court Act article 3 juvenile delinquency petition on April 30, 1999, alleging an act which if committed by an adult would constitute criminal contempt in the second degree (Penal Law § 215.50 [3]) in that respondent engaged in intentional disobedience to lawful process or other mandate of a court. On May 5, 1999, upon respondent's return on the 10th warrant, she was for the first time remanded to secure detention on the delinquency petition as the preventive detention option in the PINS proceeding does not permit a secure facility to be utilized.

An article 3 juvenile delinquency proceeding permits preventive detention in a secure facility for juveniles where there is a substantial probability that the respondent over 10 years of age will not appear on the adjourned date (Family Ct Act § 304.1 [2], [3]; § 320.5 [3]; see, Bogacz, New York Juvenile Delinquency Practice § 1-17 [a], [a] [1]; [a] [1] [i], at 96-100 [Lexis Law Publ 1998]). Preventive detention in a secure facility under Family Court Act article 7 involving the very same circumstances of substantial probability that the respondent will not appear on the adjourned date, that is, will abscond or continue to abscond, is specifically proscribed by the State Legislature (Family Ct Act § 720 [2]).

On May 10, 1999, respondent made an admission in the delinquency proceeding and the court conjointly found respondent to be a person in need of supervision in the PINS proceeding.

Family Court Act § 720 (2) provides: "The detention of a child in a secure detention facility shall not be directed under any of the provisions of this article." This legislative policy is grounded on pecuniary considerations. "According to the legislative memoranda accompanying the enactment of this section, the purpose of this section is to insure continued federal funding to the state under the provisions of the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C.A § 5601 et seq., which require that all alleged or adjudicated PINS be phased out of secure detention facilities by 1980." (1980 Opns Atty Gen 33, 34.)

Both article 3 and article 7 are status offenses, the former being criminal and the latter being noncriminal in origin. The dispositional alternatives and the finding of delinquency are imposed in article 3 not because of the underlying act by the respondent which if committed by an adult is a crime, but because the respondent is a person in need of supervision. This commonsense observation is further delineated and explained in the body of this decision and is buttressed by historical study of the Family Court Act and the predecessor courts from which the subject matter jurisdiction of Family Court is derived.^[2] Of course it must also be recognized that for purposes of labeling, offenses of a noncriminal nature by a juvenile are referred to as status offenses. The semantical use of this term in the legal and social dialogue in New York appears to have diluted awareness and appreciation of the needs of the PINS child and the crisis posed by the court's inability to meet those needs when the PINS child flouts lawful orders of the court. "Status" is defined in common parlance "as a. state or condition of a person, b. Position of affairs" (Webster's New Collegiate Dictionary [2d ed 1953]).

The 1962 Family Court Act, establishing Family Court, combined delinquency and PINS proceedings in one article (then art 7) although the Act split status offenses between delinquency and PINS. (Family Ct Act, as enacted by L 1962, ch 686, eff Sept. 1, 1962.) The predecessor Act defined delinquency as including, inter alia, a juvenile "who is incorrigible, ungovernable or habitually disobedient and beyond the control of [his] parents" (Children's Ct Act § 2 [a], as enacted by L 1922, ch 547). The 1962 Family Court Act continued this combined jurisprudential and sociological concept in article 7 which stated: "[t]he purpose of this article is to provide a due process of law * * * for considering a claim that a person is a juvenile delinquent or a person in need of supervision" and "devising an appropriate order of disposition" (Family Ct Act § 711, as enacted by L 1962, ch 686). In 1976, this purpose section was amended by a provision of the Juvenile Justice Reform Act to reflect that "[i]n any juvenile delinquency proceeding under this article, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community" (Family Ct Act § 711, as amended by L 1976, ch 878). In no sense may the revision be viewed as diluting the purpose of the juvenile justice system dating from 1824 to the present, mainly that an appropriate dispositional determination whether in a delinquency proceeding or a person in need of supervision proceeding must reflect the needs and the best interest of the respondent. (See, Besharov and Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 301.1, at 16.)

In 1973, the Court of Appeals aptly recognized that then Family Court Act article 7 (L 1962, ch 686) represented enlightened legislative recognition of the distinction between a finding of juvenile delinquency and a determination of a need for supervision and that respondents found to be in need of supervision should not be placed in institutions in which juvenile delinquents are confined (Matter of Ellery C., 32 NY2d 588 [1973]). The judicial branch of government, however, did not abandon its responsibility to meet the best interest and needs of children adjudicated to be in need of supervision where such interest and need mandated confinement. As unequivocally stated by Chief Judge Fuld: "The conclusion is clear. Proper facilities must be made available to provide adequate supervision and treatment for children found to be persons in need of supervision." (Matter of Ellery C., supra, at 591 [emphasis supplied].) The common sense and sound jurisprudential analysis pronounced in Ellery C. is further amplified in Matter of Lavette M. (35 NY2d 136 [1974]). In a cogent opinion by Judge Jasen, the Court declared: "The main thrust of our holding in Ellery C. was that it is inconsistent with the statutory right to `supervision' and `treatment' to place PINS children in institutions in which juvenile delinquents are confined. (32 N Y 2d, at p. 591.) We said it is the confinement of PINS children in a prison atmosphere along with juveniles convicted of committing criminal acts that is proscribed, and not the fact alone of placement in a training school. Put another way, it is the adequacy of the supervision and treatment there provided, not the characterization of the facility as a training school, that is determinative." (Matter of Lavette M., 35 NY2d 136, 141 [1974] [emphasis supplied].) Both the supervision and the treatment must be adequate to meet the best interests and the needs of the respondent. Inadequacy of one will necessarily undermine the adequacy of the other. This is the salient judicial teaching of the Court of Appeals. However, in an empirical sense, priority must be accorded the criterion of supervision. Treatment, of necessity, implies some form of supervision. The article 7 proceeding is entitled Person in Need of Supervision, not Person In Need of Treatment. Supervision is defined as the "Act of supervising." (Webster's New Collegiate Dictionary [2d ed].) Accordingly, one in need of supervision is one who needs oversight for direction.

Pursuant to legislative amendment, since July 1, 1983, article 7 has governed only PINS proceedings (L 1982, ch 920, § 3). Delinquency proceedings since such time have been governed by article 3 (L 1982, ch 920, § 1). From 1983 to 1987 respondents in an article 3 delinquency proceeding or an article 7 PINS proceeding, 10 years of age or older, could be detained in a secure facility, if warranted. However, in 1978 and 1987 the New York State Legislature removed this protection of family life from PINS proceedings for pecuniary reasons as disclosed in the legislative history of Family Court Act § 720 (2) (3) as amended by Laws of 1987 (ch 419, § 18) and Laws of 1978 (ch 548, § 1). These amendments have, in effect, rendered the efficacy of article 7 illusory. A respondent in an article 7 proceeding who has a history of absconding from home already has rebelled against and shown disrespect for parental authority. Common sense and right reason dictate that the fractured parental authority should be supported by the court's authority as the third branch of government. Instead the respondent with a history of absconding from home soon perceives that the court in enforcing its authority, which in a real sense is another form of parental authority, is incapable of enforcing its authority. The history of this instant PINS proceeding is a classic example of this charade....