Lewis S. Calderon, Jamaica,
Law Guardian.
OPINION OF THE COURT
GUY P. DEPHILLIPS, J. On April 21, 1998, petitioner father of the respondent Jennifer G. filed a petition under Family Court Act article 7 seeking a fact-finding hearing being held in view of the dispositional order issued in the delinquency proceeding. Since these events, the Legislature did not revisit the issue of secure detention for PINS children. However, of significance, the Legislature amended article 7 of the Family Court Act to increase the subject matter jurisdiction of Family Court from persons less than 16 years of age to persons less than 18 years of age. Family Court Act § 720 was amended in connection with this increased jurisdiction by the addition of a new subdivision (5) which states: "Where the person is sixteen years of age or older, the court shall not order or direct detention under this article, unless the court determines and states in its order that special circumstances exist to warrant such detention." The legislative absolute prohibition against secure as contrasted with nonsecure detention for a PINS child continues. This expansion of subject matter jurisdiction is effective as of July 1, 2002 (L 2000, ch 596; L 2001, ch 383, part V). The legislative findings delineated in the enactment setting forth the new effective date of July 1, 2002 read as follows:
"The legislature finds that passage of chapter 596 of the laws of 2000, which raised the maximum age that a person can be declared in need of supervision from 16 years to 18 years, was a recognition that teens under the age of 18 years need supervision, guidance and support
to grow and mature into responsible adults. The legislature also finds that raising the person in need of supervision (PINS) age reflected the reality that parents who are in fact legally and financially responsible for their children until they reach the age of 18 years, sometimes need legal and societal support in fulfilling their responsibilities. The legislature further finds that the concerns and conditions which led to the passage of the increase in the PINS age continue to exist and, that
the increase in the PINS age is an appropriate response to the needs of children and their families. The legislature also finds however that as we approach the November 1, 2001 effective date of the PINS age increase, there is significant concern regarding the readiness of the state's child welfare, probation and judicial systems to accommodate the resultant increase in the PINS caseload. In light of the aforementioned concerns and to ensure that upon implementation of the
increased PINS age, the systems and services necessary to effectively respond to needs of children and their families are in place and available, the legislature finds that it is necessary and appropriate to grant a delay of the effective date of chapter 596 of the laws of 2000." (L 2001, ch 383, part V, § 1 [emphasis supplied].)
Fascinatingly, the purpose and justification enunciated by the Legislature in redefining the age of persons in need of supervision which includes runaways is as follows:
"Likewise, a parent of a 16 or 17 year old has the obligation to support that child even if the child has left home and done whatever he or she wishes since a parent is unable to go to the Family Court to have that child determined to be a `person in need of supervision' and have the Family Court help resolve the situation.
"This bill would raise the age over which the Family Court would have jurisdiction to supervise individuals uniformly to 18 for both males and females,
ensuring that parents who are legally responsible for the support of their children have available, through Family Court, a means to control that child." (Senate Mem in Support of L 2000, ch 596, 2000 McKinney's Session Laws of NY, at 1994 [emphasis supplied].)
Respondent's placement in the article 3 delinquency proceeding was subsequently extended for a further 12 months on consent on November 15, 2000, effective as of November 4, 2000, pursuant to a supplemental petition filed by OCFS on February 23, 2000. Respondent on September 12, 2001 ran away (AWOL) from the placement facility and was returned on January 31, 2002 to an OCFS facility. On March 25, 2002, OCFS filed a further supplemental petition in the delinquency proceeding seeking to extend respondent's placement. Since the delinquency determination made on July 2, 1999, both the Appellate Division, Second and First Departments, have held that Family Court lacks the
statutory authority to compel compliance with its orders in PINS proceedings through the initiation of delinquency proceedings based on acts which if committed by an adult sound in criminal contempt (
Matter of Naquan J., 284 AD2d 1 [2d Dept 2001];
Matter of Jasmine A., 284 AD2d 452 [2d Dept 2001];
Matter of Asia H., 289 AD2d 404 [2d Dept 2001];
Matter of Edwin G., 296 AD2d 7 [1st Dept 2002]). Both appellate departments in so holding conjoined in
the delinquency petition and vacated the finding therein. On July 23, 2002, at fact-finding in the reinstated PINS proceeding the court found respondent to be a person in need of supervision and adjourned the matter for disposition. "Veritas filia temporis"
The appellate holdings cited above, and respondent's history of repeated running away while in remand in violation of this court's orders in the PINS proceeding and her running away while in placement with OCFS under the delinquency docket, mandate that the court confront the issue of the constitutionality of Family Court Act § 720 (2). The foundational purpose of Family Court to provide a parens patriae role to persons in need of supervision compels resolution of the constitutional propriety of the statutory framework designed by the Legislature to enable such persons "to grow and mature into responsible adults." The analysis of the constitutional infirmities of Family Court Act § 720 (2) delineated in dicta in
Matter of Jennifer G. (182 Misc 2d 278 [1999]) is now adopted by this court as its ratio decidendi in declaring this statutory enactment unconstitutional.
In supplementing these observations, the court notes the following:
"Historically, a strong interrelationship has existed among delinquency, person in need of supervision, and neglect proceedings. The 1922 Children's Court Act, for example, defined `delinquent child' as one who committed a crime; who violated a law or municipal ordinance; who was incorrigible, ungovernable or habitually disobedient and beyond the control of his parents; or who was truant. In short, the legal definition of delinquency encompassed conduct which today would form the basis of a PINS petition. [
Children's Court Act of the State of New York § 2; 15 Gilbert-Bliss Civil Practice of New York Annotated (recompiled 1947).] In a similar vein, the Children's Court Act prescribed almost
identical procedures to determine delinquency or neglect petitions. Both causes of action were viewed as related symptoms of family breakdown.
"The 1962 Family Court Act separated non-criminal conduct from delinquency by establishing PINS as a distinct cause of action. The Act also applied an entirely different procedure for neglect cases (originally Article 3, now Article 10). However, the historic interconnection between delinquency, PINS, and neglect actions was preserved, to a limited extent, by permitting the liberal substitution of petitions. In addition to the historic continuity, the ability to substitute petitions maintained the court's traditional flexibility in framing a suitable disposition. In appropriate cases, the court could select a disposition from any of three dispositional `menus'. (See
Joint Legislative Committee on Court Reorganization, Family Court Report, 1962 McKinney Sessions Laws, p. 3441.) Therefore, the court was granted the authority to substitute a neglect petition or a person in need of supervision petition for a petition to determine delinquency `at any time in the proceedings.' [Former subsection 716(b).]" (Besharov and Sobie, 1999 Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 311.4, at 139.)
Synoptic analysis of
Jennifer G. (
supra) follows: (1) An appropriate dispositional determination whether in a delinquency or person in need of supervision proceeding must reflect the needs and best interests of the respondent. The finding of delinquency and consequent imposition of a dispositional alternative is imposed in article 3 because the respondent is found to be in need of supervision. (2) Historically the statutory framework for meeting the needs of respondents under delinquency or PINS jurisprudence permits confinement when appropriate under due process (Family Ct Act, as enacted by L 1962, ch 686, eff Sept. 1, 1962;
see Children's Ct Act Â
§ 2 [a], as enacted by L 1922, ch 547;
see also Matter of Ellery C., 32 NY2d 588 [1973];
Matter of Lavette M., 35 NY2d 136 [1974]). (3) The Legislature in 1978 and 1987 proscribed preventive secure detention to meet the needs of PINS respondents, but
of a valid court order. The absolute proscription against detention of a PINS respondent in a secure detention facility (Family Ct Act § 720 [2]) is directly prohibited under the federal statute because it does not reflect the inherent power of the court to hold the PINS respondent responsible for violation of a valid order of the court and renders the public policy underpinning the federal statute illusory. "The Family Court Act was enacted by the Legislature to implement article VI of the Constitution" (
Matter of Slemons v Slemons, 28 AD2d 634 [3d Dept 1967]). "The new state-wide Family Court was created in 1962 to replace the Domestic Relations Court of the City of New York and the Children's Courts in the other 57 counties of the State. This was accomplished as part of the general reorganization of our courts and the establishment of a unified court system through amendment of the New York State Constitution (art. VI), effective September 1, 1962." (
People v Johnson, 20 NY2d 220, 222 [1967] [Fuld, Ch. J.].) To paraphrase Judge Levine in
Matter of Raymond G. (93 NY2d 531, 534 [1999]): "Now and since its inception, Family Court has possessed `exclusive original jurisdiction over any proceeding [involving a person alleged to be in need of supervision]' (* * * Family Ct Act former § 713 * * *;
see also NY Const, art VI, § 13 [b]; Family Ct Act § 115 [a] [vi])." Most instructive is the rational of our sister state Hawaii's highest appellate court set forth in
In re Doe (96 Haw 73,
26 P3d 562 [2001]). In that case both Hawaii's Supreme Court and Intermediate Court of Appeals (
95 Haw 340,
22 P3d 987 [1999]) recognized that status offenders (PINS) may be temporarily confined in secure facilities for violations of "valid court orders" as defined under the Federal Juvenile Justice and Delinquency Prevention Act of 1974. Under review was the July 1, 1998 findings, order, and decree of the Family Court finding respondent-appellant Jane Doe in criminal contempt for violating an order of protective supervision issued by the Family Court. The Supreme Court
"recognized the bedrock principle
"[t]hat the power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts and consequently to the administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed
of their power. Likewise, the constitutional courts of Hawaii possess the inherent power of contempt.
"Although the power to punish for contempt is an inherent power of the courts, the legislature may establish alternative procedures and penalties
that do not unduly restrict or abrogate the courts' contempt powers. See Young, 481 U.S. at 799,
107 S.Ct. 2124,
95 L.Ed.2d 740;
Walker v. Bentley, 678 So.2d 1265, 1267 (Fla.1996) (holding that `[a]ny legislative enactment that purports to do away with the inherent power of contempt directly affects a separate and distinct function of the judicial branch, and, as such, violates the separation of powers doctrine * * * of the
Florida Constitution) * * *.'
LeMay v Leandes, 92 Hawaii 614, 620-21, 94 P.2d 546, 552-53 (2000)" (
In re Doe, 96 Haw at 79-80,
26 P3d at 568-569 [citations omitted and emphasis added]).
The Hawaii Supreme Court further acknowledged that the specific criminal contempt statute and the general statutes of that state declaring the power of the courts, provide statutory authority for punishing contempts, but that such statutory authority is merely legislative restatements of the courts'
existing power!!! Recognizing that the legislative branch of government may not abrogate the inherent contempt power of the courts, Hawaii's Supreme Court noted that the legislature may regulate its use. In engaging in such regulation, the reasonableness of the regulation is subject to judicial review in that "`[t]he statutory regulation must preserve to the court
sufficient power to protect itself from indignities and to enable it effectively to administer its judicial functions'. In re J.E.S., 817 P.2d 508, 512 (Colo. 1991) (quoting
State ex rel. Bliss v. Greenwood, 63 N.M. 156,
315 P.2d 223, 227 (1957)." (
In re Doe, 96 Haw at 81,
26 P3d at 570 [emphasis supplied].) While the Hawaii Supreme Court refused to impute an intent to their legislature to foreclose Family Court from adjudicating and punishing a status offender (PINS) for criminal contempt because their statute (Haw Revised Stat Ann § 571-32 [e]) does not expressly foreclose this possibility, the New York statute, Family Court Act § 720 (2), has been held by both the Appellate Divisions, Second and First Departments, to specifically so proscribe and to thereby strip Family Court of the State of
New York, a constitutional court, of its inherent power of contempt (
Matter of Naquan, J., supra ; Matter of Jasmine A., supra ; Matter of Asia H., supra ; Matter of Edwin G., supra). New York's statute, therefore, is clearly
not susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided. This court's duty on behalf of Family Court as a constitutional court and on behalf of PINS children and their families is to confront those grave and doubtful constitutional questions. "`If a juvenile * * * can purposely or knowingly disregard Family Court orders without sanction and with impunity * * *, the legislation is a nullity, the court has no adequate remedy, [and] the juvenile remains at risk * * * Such a result is clearly not in the best interest of the juvenile or the legislative intent.'
J.S., 629 A.2d at 1374" (
In re Doe, 96 Haw at 82,
26 P3d at 571). "
What would prompt any legislator, any judge, any officer of the court, any government official to endorse this mockery of justice and to allow the PINS juvenile to remain at risk?"
Hawaii's Supreme Court concluded: "In sum, `if family courts are to retain jurisdiction of [status offenders], they must have the authority to handle them. Their inherent contempt powers provide such tools'. In re Darlene C., 278 S.C. 664, 301 S.E.2d 136, 138 (1983)" (In re Doe, 96 Haw at 82, 26 P3d at 571). It is this court's view that running away as an occasion for jurisdiction cannot be equated legally or factually with running away in willful and contumacious defiance of a valid court order (see In re Doe, 96 Haw at 80, 26 P3d at 569).
"Dismay is the only reasoned response when one studies the legislative history of [Family Court Act at § 720 (2)] * * *
"Ultimately the ability to mandate treatment services for the child and compliance by the child with such services under articles 3 and 7 reposes in the power of Family Court. The exercise of that power is not beyond review, but is subject to oversight and criticism when warranted. To eviscerate that power is to reduce article 7 to a remedy without substance, a hollow form and a false hope. If the State Legislature were to remove secure detention as a possible exercise of power by the Family Court where appropriate and warranted in an article 3 (delinquency proceeding), the protests would be deafening. That they have done so in article 7 amidst a roaring silence is ample testimony that the ideals envisioned in the creation of Family Court are far from being realized." (
Matter of Jennifer G., 182 Misc 2d at 296-297.)
Neither Lady Justice nor Jennifer G. are to be mocked or neglected.
Because of this, because conscience wills it so, because Family Court is a constitutional court, because of the public policy embraced in article 7, because of its oath of office and because of the dignity of Jennifer G. and in common humanity, this court declares Family Court Act § 720 (2) unconstitutional.
[1] "Truth is the daughter of Time" [2] On June 5, 2002, notice to the Attorney General of the State of New York to intervene concerning the constitutionality of Family Court Act § 720 (2) was sent by respondent's law guardian pursuant to court direction. [3] "Respondents in article 7 are educated or will inevitably be educated in the `School of the Streets' that absconding from nonsecure detention carries no penalty, no consequence, unless in rebelling against authority by endeavoring to or succeeding in absconding, they commit an act or acts which if committed by an adult constitute a crime. The absence of the power to remand to secure detention in PINS litigation to meet the needs and the best interests of and to protect the respondent is a cancer that enfeebles the public policy envisioned by the creation of Family Court. In many instances, parents have already exhausted all reasonable means to secure compliance with appropriate household rules and regulation by their absconding child. They come to Family Court as a last resort. Remand to the Commissioner of Social Services merely substitutes an agency and its employees for the parent. Unless there is an expectation that parental authority may be enforced and reenforced, the PINS child will ignore or treat that authority with contempt. The PINS child as well as the delinquent child is entitled to the equal protection of the laws. To deprive Family Court of the power to advance the welfare of the PINS child while maintaining such power in the court to advance the good of the delinquent child, and to do so for monetary consideration alone, is to arbitrarily discriminate without just cause and right reason." (Matter of Jennifer G., 182 Misc 2d at 289.) [4] See instructive dialogue in "Letters To The Editor" by counsel at the Legal Aid Society's Juvenile Rights Division (NYLJ, Aug. 26, 1999, at 2, col 6) and response (NYLJ, Sept. 3, 1999, at 2, col 6). [5] "With the passage of the original Family Court Act in 1962, New York became one of the first states to establish a separate category of jurisdiction for status offenders. Under the predecessor Children's Court Act (§ 2) and Domestic Relations Court Act (§ 2), the court's entire jurisdiction over juvenile misbehavior, including violations of law, habitual truancy, ungovernability, and incorrigibility, was subsumed under the term `juvenile delinquent.' However, in 1962, the Joint Legislative Committee on Court Reorganization, which drafted the Family Court Act, found that the term `juvenile delinquent' had become `a term of disapproval.' (Joint Legislative Committee on Court Reorganization, `The Family Court Act,' Vol. 2, 1962 MCKINNEY'S SESSION LAWS of NY at 3428, 3434.) The term had grown to mean `juvenile criminal.' To avoid `the needless stigma' (Id. at 3434) of the term, `juvenile delinquent,' the Committee developed the concept of a `person in need of supervision' to cover noncriminal, status offenses. "Ironically, the term `person in need of supervision' and its impersonal acronym, `PINS,' which was intended to avoid the stigma of the term `juvenile delinquent' which was in turn intended to avoid the stigma of criminal court terminology, has itself become a term of disrepute and opprobrium, underscoring the apparent unavoidability of stigmatization whenever a label is applied to individuals. [See generally Office of Children's Services, N.Y. Judicial Conference, Juvenile Injustice (1973).] "The truth of the matter is that there are no clear dividing lines between delinquent and PINS children. Their truancy rates are equally and extremely high. (Juvenile Injustice, supra, at 17.) PINS children frequently commit criminal acts which either do or do not come to the attention of the authorities. They both often have a long history of contacts with the court and social agencies. According to one study, nearly half of them have experimented with drugs. [Office of Children's Services, N.Y.S. Judicial Conference, The PINS Child: A Plethora of Problems 75 (1973).] Both delinquent and PINS children often come from similar, one parent, multi-problem families with a history of poverty and strong evidence of neglectful or at least rejecting parents. (Juvenile Injustice, supra, at 23-25.) In fact, juvenile justice professionals see some 14-18 categories of PINS children as more disturbed and more difficult to treat than all but the most severe delinquents." (Besharov, Introductory Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act art 7, at 4-5.) [6] It is noted that respondent is currently placed with the Commissioner of Social Services and the permanency planning goal is discharge to independent living. While respondent's propensity to run away is of real continuing concern, this court has not invoked its inherent contempt power and has endeavored to have respondent's best interests and needs met by securing the assistance of CASA (Court Appointed Special Advocate) and requiring the Commissioner to adequately address those needs. Respondent's wilfulness is both an asset and liability, dependent on the degree of maturity and immaturity attendant upon the exercise of that will. Respondent is needy. In her allowing her needs to be met and in the State's effort to meet those needs resides the denouement of this article 7 proceeding. To paraphrase the words of a loving parent, is it not better to protect and adequately supervise a child in need of love and care than to endeavor to repair a broken adult. If temporary secure detention is requisite to serve this goal with full due process and review, this is recognition of the child's humanity and not an abstraction of the child's existence.