Patrick B. P., Matter of

• Decision Date: 29 April 1980
• Citation: 103 Misc.2d 1102,427 N.Y.S.2d 694
• Parties: In the Matter of PATRICK B. P., a person alleged to be a Juvenile Delinquent, Respondent.
• Court: New York City Court

Page 694

427 N.Y.S.2d 694

103 Misc.2d 1102

In the Matter of PATRICK B. P., a person alleged to be a Juvenile Delinquent, Respondent.

Family Court of the State of New York, Kings County.

April 29, 1980.

Legal Aid Society, Charles Schinitsky, Brooklyn, for respondent; Erwin Weisberg, Brooklyn, of counsel.

Eugene Gold, Dist. Atty., County of Kings, by Kerry Baron, Asst. Dist. Atty., Brooklyn, for the State.

DECISION AND ORDER

RICHARD D. HUTTNER, Judge:

Respondent, age 15, is charged with the rape, sodomy and sexual abuse of his younger sisters, ages 5 and 8. The rape and sodomy as charged, are Designated Felony Acts. Family Court Act § 712, subd. (h).

Before this action was commenced, respondent's mother sought the aid of the Office of Special Services for Children to resolve this grave family problem. They referred the matter to the Society for the Prevention of Cruelty to Children. The "Society" admonished the respondent's mother that unless she reported the matter to the proper law enforcement authorities, they would remove the sisters from the home, the mother reluctantly complied and respondent was arrested.

Subsequently, a request by respondent's mother not to prosecute, was declined by the District Attorney.

The Law Guardian, by Order to Show Cause, seeks the following relief:

1. Dismissal of the petition, on the grounds that the complainant was not apprised of the procedures available for the institution of a Family Offense Proceeding, under Article 8 of the Family Court Act.

2. Dismissal of the petition in the interest of justice, since neither the mother or alleged victims wish to proceed with the prosecution, but wish instead to pursue community resources to rehabilitate the respondent.

3. Dismissal under the aegis of the Matter of Edwin R., 67 Misc.2d 452, 323 N.Y.S.2d 909. Since the respondent is already receiving supervision and treatment, and intends to continue to do so, it is therefore unnecessary for the court to order further confinement, supervision or treatment.

4. Substitution of a neglect or person in need of supervision "PINS" petition pursuant to Family Court Act § 716.

The Law Guardian's application for a dismissal in the interest of justice, based upon the respondent's family's desire to seek rehabilitation services independently is denied. Family Court Act § 711, mandates inter alia, that the court . . . "consider the needs and best interests of the respondent as well as the need for protection of the community ". (Emphasis added.). I cannot sanction a respondent accused of the serious crimes of incestual rape and sodomy, to be allowed to be free from the watchful vigil of the court and participate in a treatment program on a voluntary basis supervised only by his parents.

Respondent's argument that the case should be dismissed pursuant to the Matter of Edwin R., supra, likewise is inappropriate. Before invoking the extreme remedy of dismissal, the court must have before it evidence that any further supervision, treatment or confinement is unnecessary. Because the auxiliary services of the court, i. e. Probation Department and Mental Health Services, etc., have yet to conduct any in depth investigation or studies of the respondent, the psycho-social evaluation of the respondent and his family is scant and uninformative. Accordingly, this aspect of respondent's motion is premature, and is dismissed without prejudice.

The Law Guardian's application for substitution of a neglect petition is likewise untenable, since the record is barren of any manifestation of parental neglect.

Two further requests for relief remain for this court's determination. The commencement of a Family Offense Proceeding under Article 8 of the Family Court Act or, the substitution of a petition to determine whether respondent is a person in need of supervision, "PINS", in place of the pending juvenile delinquency petition pursuant to Family Court Act § 716.

Because this matter involves a lamentable and explosive intra-family circumstance, the protection of the family unit from the potential divisiveness and chaos upon it inherent in the pending quasi-criminal prosecution must, if possible, be considered. Matter of Appell v. Appell, 37 A.2d 966, 327 N.Y.S.2d 190. A delicate balance must be struck between judicial responsiveness and its attendant intrinsic stresses and strains and the maintenance of the integrity of the respondent's family. Enough disruption and psychic damage has occurred if in fact respondent is at fault. It is now this court's incumbency to minimize any further familial impairment while administering its responsibilities to all involved.

The difficulties inherent in fashioning solutions to like family problems have been anticipated by the drafters of the Family Court Act. This awareness finds expression in Family Court Act § 141, which states that once the conditions for intervention by the court in the life of a child and parent have been met, "the court is given a wide range of powers for dealing with the complexities of family life so that its action may fit the particular needs of those before it. The judges of the court are thus given a wide discretion . . ." (Emphasis added.)

Flexibility of approach to each problem is the sine qua non of the family court process. Resolutions to the complex problems that everyday face this court cannot be realized if the court is slavishly bound to statutes, rules and regulations that are immutable and cast in stone.

Section 141 of the Family Court Act, is illustrative of this legislative awareness and enlarges the parameters of judicial discretion in matters of this nature.

This, the respondent's first court contact, deals with conduct directed to members of his own family and not to the community. The Family Court Act recognizes a philosophical as well as a remedial distinction with regard to such behavior and is accordingly treated differently. This philosophical distinction is statutorily manifested in Family Court Act Article 8, "Family Offense Proceedings;" Section 811 of the Family Court Act is entitled "Findings and purpose." An examination of the section illustrates clearly a legislative discrimination between misconduct directed outside the family as opposed to intra-family misconduct. It states:

"In the past, wives and other members of the family who suffered from disorderly conduct, harassment, menacing, reckless endangerment, assaults, or attempted assaults by other members of the family or household were compelled to bring a 'criminal charge' to invoke the jurisdiction of a court. Their purpose, with few exceptions, was not to secure a criminal conviction and punishment, but practical help." (Emphasis added.)

Article 8 permits even as heinous a crime as assault in the first degree under appropriate circumstances, to be adjudicated within the confines of the family court so that a civil remedy rather than a criminal sanction could be secured. The purpose of this procedure is to insure the maintenance of the family unit. Family Court Act § 812 subd. (2) par. (b) states, "That a family court proceeding is a civil proceeding and is for the purpose of attempting to keep the family unit intact." (Emphasis added.)

It is apparent from reading the above citations that the family court's approach to intra-family discord is rehabilitative in scope and design.

Although the intent expressed in Family Court Act, Article 8, as outlined above, is instructive with regard to family court philosophy in dealing with intra-family offenses, its utilization unfortunately is proscribed with regard to the acts alleged...