Young, In re

• Decision Date: 20 May 1966
• Citation: 270 N.Y.S.2d 250,50 Misc.2d 271
• Parties: In the Matter of Patricia YOUNG.*
• Court: New York Family Court

Page 250

270 N.Y.S.2d 250

50 Misc.2d 271

In the Matter of Patricia YOUNG.*

Family Court, Westchester County.

May 20, 1966.

Nixon, Mudge, Rose, Guthrie & Alexander, New York City (Stuart Summit, New York City, of counsel), for petitioner.

Abraham Steisel, New York City, for respondent.

DECISION

MORRIE E. SLIFKIN, Judge.

This is a neglect proceeding instituted by an employee of the New York Foundling Hospital against the mother and stepfather of the claimed neglected child based upon a claimed 'battered child syndrome.'

Over the past decade, society has shown an increasing concern with the care and protection of the abused child. In this State, after a substantial legislative inquiry, this broadened community concern has manifested itself in criminal legislation requiring the report to an appropriate public agency of a serious injury or injuries to a child which it is believed is the result of abuse or neglect, by the physician or surgeon, or by the superintendent, manager or person in charge of a hospital or other institution where such child is being treated for the purpose of further investigation and report. Section 483--d of the Penal Law, added by L.1964, c. 811, effective July 1, 1964.

The Family Court, formerly the Children's Court, of the State of New York is the specialized social instrument which permits the making of an inquiry into the case of an alleged abused child. Under Section 312(b) of the Family Court Act a neglected child for the purpose of this proceeding is defined as a female child less than eighteen years of age 'who suffers or is likely to suffer serious harm from the improper guardianship * * * of his parents or other person legally responsible for his care and requires the aid of the court.' It is significant to note that the phrase 'improper guardianship' represents a definition in terms of the behavior of the parents or other person legally responsible for the care of the child. Such behavior may well include omissions as well as commissions of acts serving to violate those duties required on the part of a parent or person having custody, of 'care, guidance, supervision, love and affection.' In re Carl, 174 Misc. 985, 986, 22 N.Y.S.2d 782, 784.

In proceedings under this Section, the problem of proof by relevant, competent and material evidence of the allegations set forth in the petition presents a legal and social dilemma where the child involved is an infant and at a stage in development where the child cannot testify on his own behalf. At the fact-finding hearing, the Petitioner will prevail only when the allegations of the petition are supported by a fair preponderance of the evidence. Section 344, Family Court Act. In connection with such a fact-finding hearing, only competent, material and relevant evidence may be admitted. Section 346, Family Court Act.

In the case of the 'battered child', the Petitioner is usually a social agency. The social agency admittedly is not present at the time when the acts of omission or commission which are claimed as a basis of the proceeding occurred. The parent or other person having legal custody of the child is the Respondent in such a proceeding and obviously will not testify in support of the allegations of the petition. The overriding concern of the Family Court is the abused child. If the Court is to effectively protect that child when parental or custodial care is dangerously faulty or insufficient, it is apparent that, rules of evidence must be adopted which will permit the Court a full inquiry into all of the facts and circumstances to the end that the decision of the Court be based on a full disclosure.

In Matter of S, 46 Misc.2d 161, 162, 259 N.Y.S.2d 164, 165, Judge Felix at page 165 in the Unofficial Reports states as follows:

'Therefore in this type of proceeding affecting a battered child syndrome, I am borrowing from the evidentiary law of negligence the principle of 'res ipsa loquitur' and accepting the proposition that the condition of the child speaks for itself, thus permitting an inference of neglect to be drawn from proof of the child's age and condition, and that the latter is such as in the ordinary course of things does not happen if the parent who has the responsibility and control of an infant is protective and non-abusive. ...