62 N.Y.2d 306 | NY | 1984
OPINION OF THE COURT
A child abuse or neglect proceeding under article 10 of the Family Court Act is a civil proceeding for the protection of the child alleged to be abused or neglected. Notwithstanding the requirement of section 262 of the Family Court Act that when the person named in such a petition first appears in court the Judge shall before proceeding advise him or her of the right to counsel, the filing of such a petition is neither the initiation of a criminal proceeding nor such significant judicial activity in relation to a criminal proceeding as will trigger the person’s right to counsel with respect to a criminal charge arising from the same facts. When interrogated by police investigating the potential criminal charges, such a person may waive the right to counsel in the absence of counsel, provided that Miranda warnings, if required by the circumstances of the interrogation, are properly given and that the person has not in fact retained counsel in relation to the neglect proceeding. The order of the County Court should, therefore, be affirmed.
I
On October 19, 1982, Donald Corey, stepson of defendant, Roger Smith, and son of Sarah Smith, was removed from the Smith home under an order signed by a Judge of the Family Court, Onondaga County, and placed in the temporary custody of the Department of Social Services, Children’s Division, a child protective agency of the State. The order appears to have been based upon a visit to the Smith home by persons from the Child Protection Division and a policeman on October 18,1982, during which bruises were observed on Donald’s buttocks. On October 20, 1982, a summons was issued requiring Roger Smith to show cause in Family Court on October 27, 1982 why Donald should not be adjudicated a neglected child and Roger
Roger Smith not being at home, Investigator Dunseath left his card. Before returning Dunseath’s call, Smith called Carolina Miccio, a family counselor in the employ of the county (but having no relation with the Family Court or the Police Department), with whom both parents had previously consulted. Ms. Miccio was present during Officer Dunseath’s interview of Roger Smith and testified that she had told him to tell the truth and went over the statement with him to be sure he understood it. Although Smith was not then in custody, Miranda warnings were administered and he stated that he understood them and was willing to make a statement without an attorney. A statement was then taken by Dunseath in affidavit form, signed by Smith and witnessed by Miccio, in which Smith admitted that on October 13, 1982, he had spanked Donald because he wet himself, but did not think he had done so hard enough to cause bruises, although he admitted seeing a bruise like a handprint on Donald’s buttocks on October 18. After making the statement Smith was charged with assault, third degree, and served with an appearance ticket returnable in the Criminal Division of Syracuse City Court on October 28, 1982.
After a hearing on Smith’s motion to suppress, City Court found the statement to have been made voluntarily but nevertheless granted the motion to suppress, holding the Family Court proceeding and the criminal investigation and charge so interrelated that defendant Smith could not be questioned without counsel once the “accusatory step” of the Family Court proceeding had been taken.
On appeal to the County Court, that court agreed that the statement had been voluntarily made, but reversed on the law and the facts and remitted the matter for trial. It
II
Indelibly clear from the provisions of article 10 of the Family Court Act are the separate and civil nature of proceedings under that article. Section 1011 declares the purpose of the article to be “to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being” as well as to determine “when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met” (Emphasis supplied.) Subdivision (b) of section 1013 declares that, “For the protection of children, the family court has jurisdiction over proceedings under this article notwithstanding the fact that a criminal court also has or may be exercising jurisdiction over the facts alleged in the petition or complaint.” Subdivisions (a) and (b) of section 1014 permit the transfer of a Family Court proceeding to an appropriate criminal court and the transfer of a criminal complaint to the Family Court, subdivision (c) of that section states explicitly that, “Nothing in this article shall be interpreted to preclude concurrent proceedings in the family court and a criminal court”, and subdivision (d) permits the Family Court in a hearing under the section to grant only use immunity to the respondent or potential respondent (see Matter of Vance A., 105 Misc 2d 254), rather than the transactional immunity which under CPL article 50 may be granted by the court in a criminal proceeding.
Ill
Defendant fares no better when the matter is examined in light of the right to counsel contained in section 8 of article I of the State Constitution. He does not contend that he did not receive or understand Miranda warnings.
Although Investigator Dunseath concededly was aware of the Family Court proceeding at the time he took defendant’s statement, it is also conceded by defendant that at that time he had not appeared at Family Court and had no attorney, retained or assigned, in relation to that proceeding. This is not a matter, therefore, such as People v
Defendant would distinguish Kazmarick, as did the City Court Judge, on the ground that it concerned an unrelated charge, whereas in the present case the criminal charge and the Family Court proceeding arise from the same facts and are not only related but “inextricably interwoven.” The quoted phrase comes from People v Townes (41 NY2d 97, 104), which involved a defendant interviewed in a detention facility where he was being held on a criminal charge on which he had been arraigned and indicted and for which he had been assigned counsel. The related proceeding there involved was defendant’s police brutality complaint to the Civilian Complaint Review Board, as to which defendant was interviewed by a police officer assigned to investigate such complaints. There is similarity between that case and this only in that each concerns related criminal and civil proceedings. In all other respects the situations differ. In Townes the statement, although it necessarily involved discussion of the crime with which defendant was charged, was taken in the civil proceeding. It was taken, moreover, after the police were aware that defendant had been arraigned and had an attorney in the criminal proceeding, sufficiently so that the interviewing officer advised defendant of his constitutional rights even though it was his voluntary complaint in the disciplinary proceeding on which his statement was being taken. Here, defendant had no attorney in either proceeding and had only been served with a summons and petition in the civil proceeding when the officer investigating the criminal charge asked to interview him and obtained affirmative responses to Miranda warnings before conducting the interview. The statement taken, thus, would not have been
Nor is there basis for such proscription in the reasoning upon which our prior right to counsel opinions have been based. True, we have held that the right to counsel attaches when there has been significant judicial activity, even though that activity precedes the formal commencement of criminal prosecution (People v Coleman, 43 NY2d 222 [order requiring a person’s appearance in a lineup];
The situation is no different if we assume that defendant’s right to counsel had attached by reason of the Family Court proceeding, for there is a clear distinction between cases in which by reason of the commencement of formal criminal proceedings a defendant’s right to counsel has “indelibly attached” and can be waived only in the presence or with the concurrence of counsel (People v Yut Wai Tom, 53 NY2d 44; People v Samuels, 49 NY2d 218, 222, supra; People v Rogers, 48 NY2d 167; People v Settles, 46 NY2d 154) and those in which significant judicial
Defendant would distinguish the Coleman line of cases on the ground that the Family Court proceeding and the criminal assault charge are related, being based upon the same facts. Recognizing the factual relationship, we nevertheless conclude that the Coleman rationale applies. Not only is the Family Court proceeding civil in nature and one in which defendant’s statutory right to counsel had not matured by the appointment of counsel when he was interrogated on the criminal charge, but also the two proceedings have wholly different purposes. The Family Court proceeding seeks to protect the infant from future abuse by removing him or her from the parental home; the criminal action, to punish the parent for abuse inflicted in the past. It would unduly limit the investigatory function of the police with respect to a potential criminal charge of child abuse to hold that the parent’s right to counsel on the criminal charge indelibly attaches upon service of the Family Court petition. This is not a situation in which the People have used interrogation in the Family Court proceeding impermissibly to extract admissions concerning the criminal proceeding (cf. People v Miller, 54 NY2d 616; People v Ermo, 47 NY2d 863) or interrogated defendant in the criminal proceeding at a stage of that proceeding or in a manner which infringes his constitutional right to counsel (People v Wilson, 56 NY2d 692). The policy considerations involved in the prompt commencement of Family
For the foregoing reasons, the order of the County Court should be affirmed.
Order affirmed.
. Lower courts that have considered the question in other contexts have held article 10 proceedings of the Family Court Act to be civil in nature (Matter of Patricia P., 117 Misc 2d 826; Matter of Diane B., 96 Misc 2d 798; see Matter of Maureen G., 103 Misc 2d 109; cf. People v Steele, 113 Misc 2d 658).
. The giving of Miranda warnings was apparently an excess of caution on Dun-seath’s part, for defendant was not then in custody (see People v Rowell, 59 NY2d 727; Matter of Kwok T., 43 NY2d 213; People v Rodney P., 21 NY2d 1).
. The importance of the order is underscored by our later holding in People v Hawkins (55 NY2d 474) that the presence of counsel is not required at an investigatory lineup even though the suspect requests counsel and that a lineup need not necessarily be delayed for the presence of counsel even though the authorities are aware that the suspect has counsel.