105 Misc. 2d 254 | N.Y.C. Fam. Ct. | 1980
OPINION OF THE COURT
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
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 (Family Ct Act, § 1013, subd [b] ; § 1014, subd [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,
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 pos
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 US 511, 514-515.)
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 US 273; Sanitation Men v Sanitation Comr., 392 US 280; Garrity v New Jersey, 385 US 493). Nor can he be confronted with the option between the risk of self incrimination or disbarment (Spevack v Klein, 385 US 511), or disqualification from holding and obtaining contracts for public work (Lefkowitz v Turley, 414 US 70), or loss of office in a political party (Lefkowitz v Cunningham, 431 US 801, 806). 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 US, at p 514), would, if read literally, embrace and invalidate the conduct of the instant child abuse trial prior to the termination of the criminal proceed
Thus, in a direction contrary to the above decisions the court held in Baxter v Palmigiano (425 US 308, supra) 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 US, at p 318); 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 US, at pp 332-333, Brennan, J., dissenting in part).
Baxter (supra) 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.
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 US 183) lends strong support to the constitutionality of the choice confronting respondent. In McGautha, the court upheld, against a claim of violation of the privilege against self incrimination, the State’s unitary trial procedure although it forced a defendant in a murder trial to choose between taking the stand in his defense on the merits and thereby opening the door to possibly damaging testimony, or foregoing his opportunity to testify against his sentence to death (402 US, at pp 209-210, 213). See also Jenkins v Anderson (447 US 231, 236) as to a choice “ ‘that has the effect of discouraging the exercise of constitutional rights.’ ”
Furthermore, public policy, which must be considered in determining whether the “imposition of these difficult choices” is constitutional (see Chaffin v Stynchcombe, 412 US 17, 31),
Frequently such criminal cases are dismissed because of the impossibility of mustering proof beyond a reasonable
In sum, a civil trial for child abuse prior to the termination of the murder prosecution against respondent means that she cannot testify in her defense in the Family Court case without risking self incrimination on the murder charge. However, the doctrines developed by the United States Supreme Court and the New York Court of Appeals —albeit in other contexts — show that such a procedure does
II. FAMILY COURT ACT’S PROVISION FOR “testimonial immunity”
Subdivision (d) of section 1014 of the Family Court Act authorizes a Family Court Judge to accord a respondent in a child neglect or abuse case “testimonial immunity in any subsequent criminal court proceeding.” Assuming arguendo (contrary to the reasoning in point I above) that respondent’s constitutional privilege against self incrimination would be violated by trial of the child abuse petition during the pendency of her criminal prosecution, subdivision (d) of section 1014 supplies an alternative ground for decision that a concurrent trial is constitutional, for it authorizes the grant of all the protection of the privilege against self incrimination to which a respondent is constitutionally entitled.
The privilege against self incrimination protects a witness against “use of the * * * testimony and evidence derived therefrom” in a criminal prosecution; he can be induced to testify only if he is accorded “use and derivative-use immunity.” (Kastigar v United States, 406 US 441, 458, see, also, pp 452, 454, reh den 408 US 931.) While the term used in the Family Court Act — “testimonial immunity” — does not figure either in the criminal or civil procedure laws (see CPU 50.10, subd 1; CPLR 4501), and its interpretation appears to be a question of first impression, it should in view of its historical context be interpreted as covering derivative use of a respondent’s testimony as well as the testimony itself..
At the time of the enactment of the Family Court Act’s
III. respondent’s incompetence to stand trial
Respondent’s attorney argues that the child abuse proceedings against respondent must be indefinitely adjourned because of her incompetence to stand trial. Pointing out that the psychiatric reports submitted to the criminal court subscribe to her mental illness and incompetence, respondent contends that this court must follow criminal procedure and postpone trial on the instant child abuse petition until she regains competence.
The Family Court Act provides for a civil format in all proceedings thereunder and for application to them of CPLR when “appropriate” (Family Ct Act, § 165). However, in support of respondent’s position it must be noted that one type of Family Court case — juvenile delinquency —has been held quasi-criminal and a number of the provisions of the CPL have been held applicable thereto.
While the courts have not addressed the issue raised by respondent as to the application in child-protective cases of the criminal rule regarding competency, the suitability of civil procedure therein has been assumed in appellate decisions. Thus, Matter of Daniel A. D. (49 NY2d 788) concerned the permanent termination of a mother’s right to custody because of her mental illness and the child’s consequent freedom for adoption — a more drastic remedy than that at stake for respondent in the case at bar. In remanding the case to the Family Court for further trial on the mental illness issue, the Court of Appeals suggested the advisability of protection of “the mother’s interests * * * by the appointment of a guardian” pursuant to CPLR 1201 (49 NY2d, at pp 790-791). (See, also, Matter of Carmen G.F., 63 AD2d 651.) Indeed, considering the likelihood of
It is true that the Ella B. rule as to the assignment of counsel to an indigent parent smacks of an alignment of child protective proceedings with criminal cases, where such assignment is constitutionally mandated.
The approach in the mental illness field points the way appropriate herein: Special safeguards, compared to those in ordinary civil proceedings, are accorded on a selective basis; although the basic constitutional right to physical liberty is at stake,
In Addington (supra) the Supreme Court held that a commitment for mental illness required a higher quantum of proof than customary civil cases but less than the criminal standard of proof beyond a reasonable doubt. The court rejected the criminal rule because of the difference between criminal and commitment proceedings from the standpoint of the “interests at stake * * * the individual’s interest * * * and the state’s interest” (441 US, at pp 424-425). A “reasonable doubt standard”, the court said, “is inappropriate in civil commitment proceedings because * * * it may * * * erect an unreasonable barrier to needed medical treatment” (441 US, at p 432).
Applying this approach to the instant case, a differentiation from a criminal prosecution, similar to that in Adding-ton (supra), must result. The principle that a criminal defendant can not be tried unless he is competent is consistent with the criminal justice goal of protection of the public, since he can be institutionalized pending trial; contrariwise, the goal of child protective proceedings — according the child appropriate substitute care if his parent is unfit, cannot be achieved without a trial of the parent’s fitness. Thus, in regard to whether the civil or criminal rule on competence should apply in such a proceeding, the basic purpose of the Family Court Act “to establish a civil, remedial mechanism” must be controlling (see United States v Ward, 448 US 242, —, 48 USLW 4926, 4928, holding that criminal protections were inapplicable in the civil action before the court because of its remedial nonpunitive purpose, despite its similarity in some respects to a criminal proceeding.) There is no room for doubt that the purpose of the instant child protective proceedings is remedial rather than punitive; indeed, an authorized outcome even after an abuse finding, is return of the child to the mother with services in the home to help her care for him. (Family Ct Act, § 1052, subd [a], par [ii]; §§ 1054,1055, subd [c].)
In sum, despite the involvement herein of respondent’s “fundamental” interests and her consequent right to as
. According to the petition, after scalding Vance’s infant-brother with water, respondent mother placed him in the kitchen oven; Vance witnessed these acts and suffered burns on his back (see note 9 below as to relation of respondent’s mental illness to the alleged acts).
The statutory definition of child abuse is, in pertinent part, “a substantial risk of physical injury * * * by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ.” (Family Ct Act § 1012, subd [e], par [ii].)
. For example, such a motion has also been made in a child abuse case brought for the protection of the younger half-siblings of a three-year-old child who was, according to the petition, “dead on arrival at the hospital.” The allegations — less bizarre and more customary than those in the instant case — were that according to hospital and autopsy reports the cause of death was “battered child syndrome,” in that the child sustained “multiple body bruises brought on by beating,” and laceration of the liver. Both the mother and her
The District Attorney on occasion joins in the motion for indefinite adjournment, urging that the Family Court proceeding would give respondent a preview of the evidence and thus interfere with the prosecutor’s control of the criminal case.
. The guarantee of the privilege has the same meaning in the State and Federal Constitutions (see People v La Bello, 24 NY2d 598 [overruled only in other respects Matter of Gold v Menna, 25 NY2d 475, 481]), and applies in civil as well as criminal proceedings. (Maness v Meyers, 419 US 449, 464; Lefkowitz v Cunningham, 431 US 801.)
. A similar question was argued, but left undecided, in Oleshko v New York State Liq Auth (21 NY2d 778) wherein the plaintiff sought an injunction of a hearing to revoke his liquor license; he argued that if he testified at the revocation hearing “which he would have to do in order to defend himself, he would be deprived of his right to stand mute at his criminal trial [involving the same charge] since the District Attorney would have access to the statements made by him at the hearing” (21 NY2d, at pp 779-780). The court affirmed (p 780) the order below “on the opinion at the Appellate Division;” in that opinion (29 AD2d 84) the court rested on various nonconstitutional grounds,
. McCracken v Corey (612 P2d 990, 995).
. Objections to concurrent civil and criminal proceedings based on the same underlying acts, have elicited varying views as to the privilege against self incrimination and due process of law in the Federal courts. (Cf., e.g., De Vita v Sills, 422 F2d 1172, 1178-1179; Iannelli v Long, 487 F2d 317, 318; Silver v McCamey, 221 F2d 873, 874-875; Arthurs v Stern, 427 F Supp 425, 433; see, also, People v Coleman, 13 Cal 3d 867.)
While United States v Kordel (397 US 1, 3, 5) involved “simultaneous civil and criminal proceedings” and is cited as authority favorable to their maintenance, in fact any claim as to the privilege against self incrimination was “expressly disavowed”, the civil defendant being a corporation.
. This court will not draw an adverse inference from respondent’s silence if petitioner calls her to testify and she invokes her privilege, or if petitioner establishes a prima facie case and she is silent. Such an inference would be unreasonable (Cf. Slochower v Board of Educ, 350 US 551, 557). For, in view of the gravity of the criminal charge against her she might fear to testify despite her innocence and despite a grant of immunity (as to immunity, see point II below). (Cf. as to ambiguity of silence, United States v Hale, 422 US 171, 176; Doyle v Ohio, 426 US 610, 617.)
. See application of this principle in McCracken v Corey (612 P2d 880; De Vita v Sills (422 F2d 1172, 1178, 1180).
. The evidence may support a child abuse finding though not a criminal verdict, not only because of a difference in the required quantum of proof, but also because an abuse finding is proper under section 1012 of the Family Court Act whether respondent inflicted or permitted or caused infliction of the injury, and it is sometimes unclear which of these facts is true. Further, a child’s out-of-court statements as to child abuse are admissible under section 1046 of the Family Court Act, though they would otherwise be deemed inadmissible hearsay. Thus, while such hearsay must be scrutinized with caution it appears from pretrial proceedings in the instant case that Vance made credible, consistent and reliable statements shortly after the incident, about respondent mother’s deliberate burning of his brother and himself in an incident that an adult would describe as an “exorcism” rite.
. In the case of willing and fit relatives, the court of course has to consider whether they can and will give the children any needed protection from the parent. While the Commissioner of Social Services has independent authority to parole a child in foster care to a relative or even to a respondent parent, he has not been known to exercise this power while a criminal case involving a homocide or serious injury is pending.
. See Murphy v Waterfront Comm. (378 US 52) and Gardner v Broderick (392 US 273, 276). The Family Court Act’s immunity provision was enacted in section 9 of chapter 962 of the Laws of 1970.
. And shortly before enactment of the Family Court Act immunity provision, the Court of Appeals had held that the CPL wording required a grant of immunity broader than that constitutionally required under the later Supreme Court decisions. See Matter of Gold v Menrua (25 NY2d 475, 481) seemingly overruling People v La Bello (24 NY2d 598) in this respect. See Lefkowitz v Cunningham (431 US 801, 809) stating that the CPL immunity is broader than the Federal Constitution requires.
It may be noted that a provision for transactional immunity would have been inapppropriate in the Family Court Act. Though in many child abuse cases criminal processes are undesirable from the standpoint of the goals of the criminal law, there are some in which a longer sentence of incarceration than the six months possible in the Family Court is necessary to protect other children or even adults from uncontrollable violence by the respondent.
. See Piceirillo v New York (400 US 548, 568 [BRENNAN, J. dissenting]); Tierney v United States (409 US 1232, 1233-1234) as to a witness’ fear of self incrimination despite use and derivative-use immunity.
. See Matter of Dorothy D., (49 NY2d 212, 215); Matter of Hynes v Karassik (47 NY2d 659, 664) as to court’s power to seal its records and to keep its proceedings confidential.
. Compare United States v Kordel (397 US 1, 12, n 27): “Federal courts have deferred civil proceedings pending the completion of parallel criminal prosecutions when the interests of justice seemed to require such action”.
. Under GPL 730.10 (subd. 1) a defendant in a criminal case is incapacitated from standing trial if he “lacks capacity to understand the proceedings
. The cases are collected in Matter of Tony W. (91 Misc 2d 700, 702).
. Matter of Smiley (36 NY2d 433, 439-441); Potashnick v Port City Constr. Co. (609 F2d 1101, 1118).
. See Dale v Hahn (311 F Supp 1293, 1299-1300, mod 440 F2d 633, 639) as to presumption of incompetence from adjudication of mental illness for purpose of an involuntary commitment.
. People v Medina (44 NY2d 199, 207 [“Under our State and Federal Constitutions, an indigent defendant in a criminal case is guaranteed the right to counsel”]); Scott v Illinois (440 US 367, 374 [counsel guaranteed in any case in which any term of imprisonment is imposed]).
. Habeas corpus cases are, however, in general classified and treated as civil cases. (People ex rel. Curtis v Kidney, 225 NY 299, 304; CPLR art 70.)
. See Matter of Buttonow (23 NY2d 385). And see Dooling v Overholster (243 F2d 825, 826-829); Howard v Overholster (130 F2d 429, 434) indicating that counsel or a guardian ad litem is constitutionally required for the protection of the allegedly mentally ill respondent in such a proceeding.
. See O’Connor v Donaldson (422 US 563, 573, 575).
. Although the Family Court Act only requires a “preponderance of the evidence” (§1046, subd [b]), some Judges have adopted the clear and convincing evidence standard.
. See Sengstack v. Sengstack (4 NY2d 502, 509) as to appointment of guardian ad litem for person suspected of incompetence though not “judicially declared such”; see, also, Matter of Manufacturers Hanover Trust Co. (73 AD2d 539).
The court appointed Sister Eileen, a chaplain at Bikers Island where respondent was detained, as respondent’s guardian ad litem, at respondent’s request and after review of Sister Eileen’s understanding and acceptance of the role and her qualifications therefor.