Opinion
D17498/07.
Decided on February 25, 2008.
Michael Cardozo, Corporation Counsel(Lori Iskowitz, of counsel), New York City, for Presentment Agency.
Tamar Steckler, Legal Aid Society (Thomas Burrows, of counsel), Jamaica, Law Guardian.
On August 23, 2007, a petition was filed before this court, alleging that the Respondent, aged 9 ½ years, was a juvenile delinquent, in that: between the dates 7/21/07-7/22/07 he did commit what would be the crimes, were he an adult, of Criminal Sexual Act in the First Degree (PL § 130.50(3)); Sexual Abuse in the First Degree (PL § 130.65(3)); Sexual Misconduct (PL § 130.20(2)); and Endangering the Welfare of a Child (PL § 260.10(1)) against a seven year old victim.
Respondent was assigned counsel, arraigned and paroled to his father with a temporary order of protection issuing that prohibited Respondent from having any contact with the complainant or being left alone with any child under the age of ten years without a responsible adult being present to supervise.
This court did also order an investigation by the Administration for Children's Services (hereinafter "ACS") into the level of adult supervision by the parent of Respondent as the offenses charged in the petition were alleged to have occurred in Respondent's own home.
On October 16, 2007, Respondent made an admission to the third count of the petition, Sexual Misconduct (PL § 130.20(2)). Respondent admitted to putting his penis in/on the complainant's anus without her consent. Dispositional reports were ordered i.e., I R, updated reports from ACS and forensic reports (hereinafter referred to as "FET").
On November 14, 2007, ACS filed a neglect petition (Docket NN 23169/07) against Respondent's father and Respondent was remanded to ACS. On November 19, 2007, Respondent was placed by ACS in kinship foster care to reside with his paternal uncle.
The neglect allegations against the father charged behaviors occurring subsequent to this court's parole on the instant delinquency petition, and in sum and substance were that he misused marijuana and was not cooperating with a substance abuse program; that he suffered a mental illness, to wit, depression and was not compliant with his therapy or medication; and that he left Respondent with an inappropriate caretaker who became intoxicated while Respondent was in her care and that due to all of the above Respondent was at risk of becoming a neglected child.
In other words, the neglect accusations against the father were wholly distinct from the delinquency allegations Respondent was charged or found culpable of.
Aside from the current familial circumstances, it was revealed in the dispositional reports prepared pursuant to this delinquency case, that Respondent had been born in prison where he resided with his mother for the first year of his life. Then Respondent lived with his father until the father sustained a series of periods of incarceration. Whereupon, Respondent resided with an aunt until she died in a house fire in which Respondent also suffered serious burns. Ultimately, Respondent again returned to reside with his father after a brief stay with an uncle, and Respondent had been residing with his father for the approximate two years immediately preceding the delinquency offense.
Respondent has clear psychological, educational and social issues. He has been diagnosed with ADHD and learning disabilities and has a history of disruptive behavior and special education. Respondent has begun receiving sex offenders treatment as a result of this delinquency case, and appropriate assessments for additional services through ACS and the private foster care agency Harlem Dowling have ensued since Respondent has been residing in the kinship foster home of his uncle.
The delinquency case has reached disposition . The neglect case remains in the preliminary pre-fact-finding stage.
The Law Guardian has moved this court to consider the following alternative dispositions to a delinquency adjudication. First, to substitute a PINS finding for the delinquency finding, pursuant to FCA § 311.4(2). Second, to convert the PINS finding into one of child neglect pursuant to FCA § 716. Or third, to dismiss the delinquency petition in the interests of justice, pursuant to FCA § 315.2.
Working backwards, dismissal in the interests of justice is an inappropriate outcome for the instant case due to the seriousness and circumstances of the offense and the extent of the harm occasioned thereby. This court will not, nor can it, find that this act of sexual misconduct to which Respondent pleaded against a female child two years his junior is less serious or traumatic an event than any experience Respondent himself may have experienced. The Legislature has seen fit to confer Article 3 juvenile delinquency jurisdiction upon any youth, age 7 or over, who is alleged to have committed an act which if committed by an adult would be a crime (FCA § 301.2(1)), and Respondent's conduct as described in his own words under oath after allocution sufficiently made out a violation of the Penal Law.
As for the history, character and condition of the Respondent and his own needs and best interests it is unequivocal that this court needs to retain jurisdiction to address same, and if Respondent is not successfully rehabilitated he will pose a threat to the community given the onset of such disturbing behavior at such a young age. Finally, there has been no misconduct by law enforcement.
Next, this court also rejects the suggestion that this matter be converted to a PINS proceeding. Conversion to a PINS proceeding affords this court much fewer dispositional options and ignores the fact that the offense resulted in the victimization of another child. PINS is itself a status offense sounding in issues of incorrigibility, truancy and runaway behavior. Contrary to the reasoning of the Family Court in Matter of Derrick C., 519 NYS2d 934,936 (Richmond Co. Family Ct., 1987), in this instant case treatment of Respondent as a PINS would not more accurately reflect his status while also assuring that the right of the community to protection would not be compromised. While Respondent's history is clearly one of "recurrent trauma of stunning magnitude" (FET dated 11/28/07 p. 8), there is no evidence that he himself was the subject of sexual abuse (FET p. 7). Nor can it be said that an act of sexual misconduct is the equivalent of a criminal trespass ( Matter of Derrick C., infra) or "joyriding" ( Matter of Richard C., 352 NYS2d 15 {43 AD2d 862} (2nd Dept., 1974).
Furthermore, the dispositions available in a PINS matter are placement for up to 12 months, probation for up to 12 months, or suspended judgment for 12 months ( See, FCA § 754). Placement is not being contemplated and the remaining community based dispositions are of inadequate duration to assure Respondent's successful rehabilitation given the complexity and duration of his issues. Despite ACS's prior involvement with Respondent and the provision of services to him and his father for almost two years preceding this delinquency petition, the instant offense did occur.
As for conversion ultimately to a neglect proceeding, that too is not appropriate. There does not appear to be any causal connection between the neglect charges against Respondent's father and Respondent's delinquency offense. Indeed the FET clinician observes the "clear love and attachment" the father has for the son and vice versa. The focus of the current neglect case is the father's need to acknowledge and address his own substance abuse and psychiatric issues to enable him to stabilize and then support and caretake the Respondent, his son. There is no assurance that the neglect case will even result in a finding as it is only currently scheduled for a first preliminary conference. So too, the presenting agencies are different and serve different clients; ACS, as a child protective agency on the neglect case and the Corporation Counsel's Family Court Division on behalf of the People of the State of New York on the delinquency petition. Beyond disposition the court and parties retain vested interests whether pursuant to permanency hearings under FCA § 1055 or extensions or modifications under FCA § 355.5. It is also important to note that there is no presenting agency in a PINS proceeding.( See, FCA § 741).
As was previously noted, Respondent has commenced sexual offender treatment as a result of this delinquency proceeding and this is a critical component of his rehabilitation as he himself has acknowledged the inappropriateness of his behavior. This was not an act of "childhood exploration" as suggested by the law guardian.
The only disposition which will assure the necessary treatment and continued supervision required to serve Respondent's needs and best interests as well as the community's protection for a sufficiently sustained period of time to teach Respondent appropriate social boundaries and non victimization behavior, and to ameliorate his disruptive behavior disorder, ADHD, post traumatic stress disorder, and to assess and provide for his learning disability would be to place him under probation supervision pursuant to FCA § 353.2 for up to 2 years on the following conditions:
1. No new arrests.
2. Attend school every day, all day, on time, no cuts, no suspensions.
3. Obey uncle's rules in home for as long as he is residing in kinship foster care pursuant to the orders under the Article 10 case and obey his father's household rules should he be returned to reside therewith.
4. Cooperate with the Department of Probation, ACS, and Harlem Dowling and all services provided or referrals made consistent with the recommendations of the FET.
5. Continue to attend and cooperate with sex offender treatment.
6. Respondent to abide a final order of protection in favor of the complaining witness, directing
that he shall have no contact with her and that Respondent shall not be left alone with any child under the age of 10 without a responsible adult (age 21) being present to supervise.
This constitutes the decision and order of the court.