Vance A., Matter of

• Decision Date: 24 September 1980
• Citation: 105 Misc.2d 254,432 N.Y.S.2d 137
• Parties: In the Matter of VANCE A., a Child Under 18 Years, Alleged to be Abused. COMMISSIONER OF SOCIAL SERVICES OF NEW YORK CITY, Petitioner, v. PATRICIA A., Respondent.
• Court: New York Family Court

Page 137

432 N.Y.S.2d 137

105 Misc.2d 254

In the Matter of VANCE A., a Child Under 18 Years, Alleged

to be Abused.

COMMISSIONER OF SOCIAL SERVICES OF NEW YORK CITY, Petitioner, v. PATRICIA A., Respondent.

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

Sept. 24, 1980.

Allen G. Schwartz, Corp. Counsel, New York City (Thomas Skaren, of counsel), for petitioner.

Martin Kramer, New York City, for respondent.

Charles Schinitsky, Brooklyn (Legal Aid Society, Karen Goldstein, New York City, of counsel), Law Guardian for the child.

OPINION

NANETTE DEMBITZ, Judge:

The child abuse petition herein, filed by the New York City Commissioner of Social Services under Article 10 of the Family Court Act for the protection of six-year old Vance, alleges that Vance is in danger of serious physical injury by respondent, his mother, in that she caused the death of his year-old brother by purposely inflicting burns on 95 per cent of his body, ¹ and in the same incident inflicted milder burns on Vance. When the case came on for trial to determine the truth of the allegations, respondent was incarcerated under an indictment for the murder of Vance's brother, and Vance was in temporary foster care pursuant to the Commissioner's emergency child-removal power.

Respondent's assigned counsel, moving for an indefinite adjournment of trial, contended that her constitutional privilege against self-incrimination would be violated if the child abuse trial were held before the termination of the criminal case against her. Acceptance of this contention would render unconstitutional the Family Court Act's provision for Family Court proceedings concurrent with or prior to criminal litigation concerning the same underlying acts (F.C.A. secs. 1013(b), 1014(c)). Both petitioner-Commissioner and the Legal Aid attorney appointed to represent the child Vance, opposed respondent's position; they pointed out that postponement until the conclusion of the criminal case would inevitably be lengthy because it had not even progressed to a hearing on respondent's alleged incompetence to stand trial.

While a motion by respondent for indefinite adjournment is frequent in Family Court child protective cases when criminal proceedings are also pending, ² the issue as to the privilege against self-incrimination presented by such motions has not been the subject of a published opinion or appellate review; and such motions have met with different results before different trial judges. Though there is no controlling authority on the constitutionality of concurrent civil and criminal trials based on the same underlying acts (see notes 4 and 5 below), this Court concludes on the basis of doctrines developed by the appellate courts in other contexts that the Family Court Act's provision for such trials is constitutional, and that respondent's child abuse trial before the conclusion of the related criminal prosecution does not violate her privilege against self-incrimination (Point I below). As an alternate ground for decision, it is concluded that the Family Court Act's provision for "testimonial immunity" regarding criminal prosecution authorizes the Family Court to accord respondent all the protection from self-incrimination to which she is constitutionally entitled. (Point II below). Finally the Court rejects respondent's argument that child abuse proceedings are controlled by the criminal law rule prohibiting an individual's trial while mentally incompetent. (Point III below). Despite some similarity to a criminal proceeding, a child abuse case is governed by the civil rule that a trial may be held if a guardian ad litem is appointed for an incompetent party (CPLR 1201).

I. Impact of Privilege Against Self-Incrimination in Child-Protective Proceeding

The argument that respondent's constitutional privilege against self-incrimination would be violated by her trial for child-abuse during the pendency of her criminal prosecution, rests on this fact: in order for her to give testimony in defense or partial exculpation in the Family Court proceeding she would be forced to risk the use of such testimony against her in the criminal prosecution. The possibility of such self-incrimination through testimony intended as exculpation must be recognized; for even a defendant's admission that he knew a guilty person might "link" him with a crime despite his innocence. Grunewald v. United States, 353 U.S. 391, 422, 77 S.Ct. 963, 983, 1 L.Ed.2d 931. See also Baxter v. Palmigiano, 425 U.S. 308, 327, 96 S.Ct. 1551, 1562, 47 L.Ed.2d 810 (Brennan, J., dissenting in part), pointing out that "an innocent person ... (may fear) that revelation of information would tend to connect him with a crime he did not commit." And prosecutorial use of any testimony by respondent herein must be viewed as a realistic risk, considering the District Attorney's frequent efforts to secure transcripts of the testimony in child abuse cases.

The risks and choices confronting respondent by a forthwith child abuse trial must therefore be evaluated in the light of the privilege against self-incrimination, for the privilege prohibits any agency of government from imposing "a price for asserting it ... (It) guarantees ... the right of a person to remain silent unless he chooses to speak ... and to suffer no penalty ... for such silence ... In this context 'penalty' ... means ... the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly.' " Spevack v. Klein, 385 U.S. 511, 514-515, 87 S.Ct. 625, 628, 17 L.Ed.2d 574. ³ Thus, the question at bar comes down to this: is it an unconstitutional price or sanction within the Supreme Court's meaning, to force respondent to choose between foregoing her right to testify in the child abuse trial or risking self-incrimination in the criminal prosecution? ⁴ As the highest court of another state recently commented in an analogous situation-a probation revocation hearing concurrent with a criminal prosecution for the same underlying act, "there is no clear standard for determining what choices constitute a penalty;" ⁵ and determination of the instant case thus requires analysis of several lines of authority. ⁶

A. Sanctions on the Exercise of the Privilege Against Self-Incrimination

In a series of decisions the United States Supreme Court held that an individual cannot be forced to choose between the risk of self-incrimination and the loss of public employment (Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082; Sanitationmen v. Commissioner, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089; Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562). Nor can he be confronted with the option between the risk of self-incrimination or disbarment (Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574), or disqualification from holding and obtaining contracts for public work (Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274), or loss of office in a political party (Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 2136, 53 L.Ed.2d 1). Statements in these decisions as to "... the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will" (Spevack, 385 U.S. at p. 514, 87 S.Ct. at p. 628), would, if read literally, embrace and invalidate the conduct of the instant child abuse trial prior to the termination of the criminal proceedings against respondent. For, her "free choice to speak out or to remain silent" (Garrity, 385 U.S. at p. 497, 87 S.Ct. at p. 618), about the charged crime would be affected by the fact that her silence would cost her her opportunity to defend herself against the allegations of child abuse. However, the foregoing Supreme Court dicta must be read cautiously. In fact, in each of the above cases a respondent or defendant's choice against testifying and risking self-incrimination resulted in a direct and automatic loss of a benefit, and there appears to be no United States Supreme Court decision invalidating a less drastic consequence.

Thus, in a direction contrary to the above decisions the Court held in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810, that it was constitutional to draw an adverse inference from a defendant's silence in a prison disciplinary proceeding even though it resulted in his punitive segregation and downgrading of his classification status. Partly because there was no automatic damage to defendant from his silence, the Court said that the procedure "does not smack of an invalid attempt by the State to ... penalize (the) exercise of the privilege" (Baxter, 425 U.S. at p. 318, 96 S.Ct. at p. 1558); the majority rejected the dissenting view that the result was "to make costly the exercise of the privilege" by offering respondent an "inducement" to forego it (Baxter, 425 U.S. at pp. 332-3, 96 S.Ct. at p. 1565, Brennan, J., dissenting).

Baxter is a strong precedent for the constitutionality of the choice confronting respondent in the instant case. There not only was a loss of personal liberty at stake, but also it was a likely consequence of the negative value attached to defendant's silence; here a liberty loss to respondent if she chooses silence is speculative, depending on the strength of petitioner's evidence. ⁷ And in Marine Midland Bank v. Russo, 50 N.Y.2d 31, 42, 427 N.Y.S.2d 961, 405 N.E.2d 205, the Court of Appeals, citing Baxter, recently held constitutional a forced choice between self-incrimination or an adverse inference as to civil liability (albeit that the liability was only for money damages).

B. "Difficult Choices" and Public Policy

Thus, the choice imposed on respondent by a forthwith child abuse trial between the right to testify therein and the right against self-incrimination, appears to fall in the category of choices that are constitutional although difficult. McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, lends strong support to...