Opinion
9015
06-20-2019
IN RE A.V., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency
Dawne A. Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for presentment agency.
Dawne A. Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for presentment agency.
Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about November 28, 2017, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that she committed an act that, if committed by an adult, would constitute the crime of assault in the third degree, and placed her on probation for a period of 12 months, affirmed, without costs.
The court providently exercised its discretion when it adjudicated appellant a juvenile delinquent and placed her on probation, which was the least restrictive alternative consistent with appellant's needs and those of the community (see Matter of Katherine W., 62 N.Y.2d 947, 479 N.Y.S.2d 190, 468 N.E.2d 28 [1984] ). Although this was appellant's first arrest, she was a participant in an unprovoked violent attack on two strangers. There is no dispute that appellant's father instigated the attack. In the ensuing melee, appellant repeatedly struck the female complainant with a mini or souvenir baseball bat, while the father's girlfriend continuously punched the complainant. Appellant continued the attack by joining her father and his girlfriend in chasing the two complainants, who were able to seek refuge in a restaurant where they called 911. After the police arrived, the complainants were transported by ambulance to the hospital to be treated for their injuries. The female complainant suffered from anxiety after the attack and continuing to the time of trial, and intended to relocate to another borough as a result of the attack. The dissent parses the incident focusing on the injuries inflicted by appellant, but as part of a group assault she is responsible for the consequences of the attack.
In addition to the seriousness of the offense, the available information supported the conclusions that appellant would benefit from engagement in mental health services and monitoring with regard to her school attendance and her academic performance and that she was in need of a longer period of supervision than the six-month period that an adjournment in contemplation of dismissal would have provided (see e.g. Matter of Jaquiya F., 167 A.D.3d 428, 86 N.Y.S.3d 879 [1st Dept. 2018] ). We find no abuse of discretion in the decision of the court, which heard the evidence and observed appellant throughout the proceedings. We note that appellant may seek relief from the juvenile delinquent adjudication when she reaches the age of 17 (see Family Court Act §§ 375.2 and 375.3 ).
All concur except Manzanet–Daniels and Gesmer, JJ. who dissent in a memorandum by Gesmer, J. as follows:
GESMER, J. (dissenting)
In my view, the Family Court abused its discretion as a matter of law. Accordingly, I respectfully dissent.
When determining the "least restrictive available alternative" in a juvenile delinquency proceeding ( Family Court Act § 352.2[2][a] ), a court is "bound to view [the minor's] conduct ... in the context of [his or her] total life circumstances for the purpose of determining the least restrictive dispositional alternative consistent with both appellant's needs and the need for protection of the community" ( Matter of Juan P., 114 A.D.3d 460, 464, 980 N.Y.S.2d 397 [1st Dept. 2014] ). The court must "consider the child's background, the stability of the child's home life, the adult supervision available in the home, the child's age at the time of the incident and the progress the child has made since the incident" ( Matter of Narvanda S., 109 A.D.3d 710, 714, 972 N.Y.S.2d 1 [1st Dept. 2013] ). "The disposition is not supposed to punish a child as an adult, but provide effective intervention to ‘positively impact the lives of troubled young people while protecting the public’ " ( id. at 712, 972 N.Y.S.2d 1 [quoting Matter of Robert J., 2 N.Y.3d 339, 346, 778 N.Y.S.2d 763, 811 N.E.2d 25 [2004] ).
A.V. was 13 when she joined in an attack her father had instigated against two strangers on March 8, 2017. This was A.V.'s only arrest (see Matter of Juan P., 114 A.D.3d 460, 980 N.Y.S.2d 397 ), she participated in the attack under her father's direction, and there was no evidence that she had ever been in any trouble before or since, at home or in school. She expressed remorse for her acts (see Matter of Tyttus D., 107 A.D.3d 404, 965 N.Y.S.2d 725 [1st Dept. 2013] ). The Administration for Children's Services (ACS) immediately removed A.V. from her father's chaotic and traumatic custody and placed her in her grandmother's care. Since the move, A.V. achieved a substantial improvement in her school attendance and performance. Family Court explicitly acknowledged that A.V. had learned from the incident, and "does not need to be dealt with harshly" (see Narvanda S., 109 A.D.3d 710, 972 N.Y.S.2d 1 ). At the time of the hearing, both A.V. and her grandmother wanted A.V. to participate in counseling, and the foster care agency supervising her placement with her grandmother was attempting to secure mental health services for her (see id. ). Indeed, as Family Court acknowledged, she was "getting services already through ACS." Under these circumstances, the Family Court's adjudication of A.V. as a juvenile delinquent and imposition of one year of probation was not "the least restrictive available alternative" ( Family Ct. Act § 352.2[2][a] ).
The two complainants, a man and a woman, testified at the fact finding hearing as follows. On March 8, 2017 at approximately 8:00 p.m., they encountered A.V.'s father panhandling on the subway. They refused his request for money because he was drunk. Mr. V. then cursed at and argued with them, claiming that he was trying to get food for his daughter. A.V. was standing at the far end of the train during this exchange.
At 10:00 p.m., they passed A.V.'s father on the street by chance. Mr. V. made eye contact with them and said, "Oh, look, I have something for you." He then ran to a nearby storefront, knocked on the window and said, "Come out" to A.V. and a woman who they later learned was Mr. V.'s adult girlfriend, Arielle Ortiz. As the couple walked away from Mr. V., Mr. V. began arguing with the man, and Ms. Ortiz began punching the woman in the face and upper body. A.V. then approached and hit the woman with a small toy souvenir baseball bat approximately three to five times on her arm, back and leg. After about one minute, Mr. V., Ms. Ortiz and A.V. started to walk away, but then, approximately 30 seconds later, returned. As Ms. Ortiz again punched the woman and A.V. hit her again with the toy bat, the male complainant tried to intervene. At about the same time, an unidentified man hit the male complainant on the back of his head with a pipe. The male complainant then pulled the female complainant into a nearby restaurant. As they were trying to pull the door shut, A.V.'s father and his girlfriend tried to push it open, and A.V.'s father hit the woman in the face with a glass bottle. The couple called the police, who arrived within a few minutes. A.V., her father and his girlfriend were arrested. The entire incident, from the time the couple encountered Mr. V. on the street until it ended, lasted approximately 15 minutes.
Contrary to the majority's statement, neither complainant testified that anyone "chased" them.
As a result of the attack, the female complainant suffered cuts, scrapes, and bruises to her face, where she had been punched by Ms. Ortiz and hit with a bottle by Mr. V. She was released from the hospital the same evening, and advised to take Advil, which she did for one week. Her cuts and bruises lasted for a week or two.
As discussed further below, at the time of this incident, ACS had already commenced a neglect proceeding against A.V.'s father and his girlfriend because their inadequate care led her to miss school often, which was "precluding her from receiving necessary services to address her learning disability and support her educational progress," including group and individual therapy. Two days after the incident, ACS placed A.V. in the home of her paternal grandmother, Ivette V.
On or about March 31, 2017, the Corporation Counsel filed a petition alleging, in eight counts, that A.V. had committed acts, which, if committed by an adult, would constitute a crime, and that she was in need of supervision, treatment, or confinement. The fact finding hearing took place on September 27, 2017 and October 11, 2017. On October 11, 2017, the Family Court dismissed seven of the charges and sustained only one, finding that the Corporation Counsel had proven beyond a reasonable doubt that A.V. had committed an act that, if committed by an adult, would constitute assault in the third degree, a class A misdemeanor ( Penal Law § 120.00 ).
Counts 1 and 5 alleged attempted gang assault in the first degree and attempted assault in the second degree, both based on the premise that A.V. had intended to cause serious physical injury and had done so. Counts 2, 3 and 7 alleged attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree, respectively, all based on the glass bottle, wielded by Mr. V. Counts 4 and 8 alleged assault in the second degree and criminal possession of a weapon in the fourth degree, respectively, both premised on the allegation that the toy bat in A.V.'s hands was "a dangerous or deadly instrument or weapon" (Penal Law § 265.01[2] ; see also Penal Law § 120.05[2] ).
Contrary to the majority's statement, Family Court did not find that A.V. was responsible for all of the consequences of the attack. A.V. was never charged with any offense in connection with the unknown man's assault on the male complainant with a pipe. Consequently, Family Court did not consider the male complainant's injuries at all in reaching its factual determination as to A.V. Furthermore, Family Court did not find A.V. liable for her father's hitting the female complainant in the face with a glass bottle because it did not find that A.V. even knew that he possessed the bottle, and, accordingly, the court dismissed all of the counts based on the use of the glass bottle. Family Court found that the toy bat A.V. used was not a dangerous instrument and that A.V. did not intend to cause physical injury, and accordingly dismissed counts 4 and 6. Family Court sustained only the class A misdemeanor charge of assault in the third degree, finding that, were A.V. an adult, her acts would have resulted in accomplice liability for only Ms. Ortiz's acts in punching the woman complainant.
Accomplice liability requires a finding of mental culpability necessary for the commission of the crime charged (Penal Law § 20.00 ), i.e., that AV acted recklessly, with the intent to cause physical injury, or with a deadly weapon or dangerous instrument (Penal Law § 120.00 ). Family Court expressly found that A.V. did not intend to injure the complainant (Penal Law § 120.00[1] ) and that the toy bat was not a deadly weapon or dangerous instrument. Therefore, it implicitly found that A.V. acted recklessly (Penal Law § 120.00[2] ).
At the dispositional hearing on November 28, 2017, the Family Court considered, inter alia, the Investigation Report of the New York City Department of Probation (IR), A.V.'s New York City Public School records, her Individualized Education Program (IEP), the neglect petition filed against Mr. V. and his girlfriend on or about January 6, 2017, and the report by A.V.'s foster care agency case planner to the court hearing the neglect proceeding (Foster Care Agency Report). A.V. is currently 15, and the one-year probation term imposed by Family Court on November 28, 2017 has ended. She now asks that this Court hold that an adjournment in contemplation of dismissal (ACD) was the least restrictive available alternative, and dismiss the petition. In my view, under the circumstances of this case, the court improvidently exercised its discretion when it adjudicated A.V. a juvenile delinquent and imposed probation. This was not "the least restrictive available alternative" ( Family Ct. Act § 352.2[2][a] ). An ACD with appropriate terms and conditions, including supervision by the Probation Department and a requirement that A.V. cooperate with mental health services ( Family Court Act §§ 315.3[1], [2] ), would have sufficed to serve A.V.'s needs and to protect society, and would have "avoided the stigma of a juvenile delinquency adjudication" ( Matter of Anthony M., 47 A.D.3d 434, 435, 849 N.Y.S.2d 519 [1st Dept. 2008] ).
The majority's statement that Family Court "observed" A.V. during the proceedings is inapposite to its dispositional findings, since A.V. did not testify, and Family Court made no mention of A.V.'s demeanor during the proceedings.
The Family Court correctly observed that A.V. requires mental health treatment and that she had a history of missing school while in her father's custody. However, its determination that a juvenile delinquency finding and 12 months of probation was the appropriate disposition to ensure that she receive treatment and continue to attend school is not supported by Family Court's own findings.
First, the Family Court made no specific finding that a 12 month period of Probation Department supervision was necessary to achieve these goals or that the six-month period of an ACD would not suffice to do so. Indeed, Family Court found that the Probation Department "doesn't have to do anything fancy but coordinate the services ACS is giving and make sure she attends school and have limited oversight."
Second, as discussed above, and as acknowledged by the Family Court, the record demonstrates that A.V. has vastly improved her school attendance and performance since being in her grandmother's care (see Narvanda S., 109 A.D.3d at 712, 972 N.Y.S.2d 1 [ACD appropriate where attendance improved between incident and dispositional hearing, at which time appellant had four absences] ).
Third, as the Family Court acknowledged, the foster care agency supervising A.V.'s placement with her grandmother was already attempting to put mental health services in place. In addition, A.V.'s IEP indicates that she was to receive counseling in school, which was confirmed by the Foster Care Agency Report. Moreover, the IR noted that A.V. and her grandmother were not only willing for A.V. to attend counseling, but believed that she was in "dire need" of mental health services (see Narvanda S. , 109 A.D.3d at 713, 972 N.Y.S.2d 1 ; Juan P. , 114 A.D.3d at 463, 980 N.Y.S.2d 397 [in each case, ACD was appropriate where appellant and care giver were willing for appellant to receive mental health services] ). The only obstacle appears to have been the foster care agency's difficulty obtaining consent from either of her apparently dysfunctional parents. There is no evidence that another agency's involvement would have secured such services any more expediently, and, in any event, the Probation Department could have coordinated with the school and foster care agency just as effectively during a six-month ACD.
The July 18, 2017 Foster Care Agency Report explains that A.V.'s case planner was in the process of attempting to obtain parental consent as a prerequisite to referring A.V. for individual psychotherapy. At the time of the dispositional hearing, A.V. remained in a temporary kinship foster care placement with her grandmother. Although Family Court Act § 383–b permits the local commissioner of social services to "give effective consent for medical, dental, health and hospital services" for children in foster care, ACS generally seeks parental consent to non-emergency medical and mental health treatment (see Matter of Matthew V. [Lynette G.], 59 Misc.3d 288, 295–296, 68 N.Y.S.3d 796 [Fam. Ct., Kings County 2017] [parents retain the right to make medical decisions for their children even after the state obtains temporary custody, and a hearing is required before the ACS may override the parent's wishes]; Matter of Martin F., 13 Misc.3d 659, 678, 820 N.Y.S.2d 759 [Fam. Ct., Monroe County 2006] [legislative purpose of Social Services Law § 383–b was to provide for immediately necessary medical treatment when no parent was available to consent] ), particularly where, as here, the requested treatment may lead to the administration of psychotropic medications (see Matter of Isaiah T.F.-C. [Charisse F.-D'Juan C.], 136 A.D.3d 687, 23 N.Y.S.3d 914 [2d Dept. 2016] ; Matter of Justin R., 63 A.D.3d 1163, 881 N.Y.S.2d 305 [2d Dept. 2009] ). This policy is based on the agency's recognition that parents retain their constitutional right to make such decisions for their children in foster care (see ACS Parent Handbook: A Guide for Parents with Children in Foster Care ["As a Parent of a Child in Foster Care, You Have the Right to: ... Consent to medication and speak with the prescribing doctor ...."] [available at: https://www1.nyc.gov/assets/acs/pdf/advocacy/parent_ handbook.pdf [last accessed May 21, 2019]]; see also Public Health Law § 2504[2], [4] [parental consent required for all but emergency medical treatment of children]; Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 [1982] ["The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State"] ).
Finally, Family Court appropriately found that it was A.V.'s "tumultuous history when she was with the father ... that led to this incident that took place while she was together with her father," and that "she learned from [the incident] and is doing better with the grandmother."
The trial record reveals that, while in her father's custody, A.V. had to walk a tightrope of pleasing her father while maintaining her own moral compass. Her ability to do this is illustrated, for example, by the IR's statements that she was drug-free, despite having been introduced to marijuana at the age of 12 by her father's girlfriend, and that she had rejected becoming a part of the gang of which her father was reportedly a member.
The majority emphasizes the seriousness of A.V.'s acts. However, "[a]lthough the seriousness of the juvenile's acts is an extremely important factor in determining an appropriate disposition ..., it is not the only factor. The disposition is not supposed to punish a child as an adult, but provide effective intervention to ‘positively impact the lives of troubled young people while protecting the public’ " ( Narvanda S., 109 A.D.3d at 712, 972 N.Y.S.2d 1 quoting Matter of Robert J., 2 N.Y.3d 339, 346, 778 N.Y.S.2d 763, 811 N.E.2d 25 [2004] ). Indeed, we have previously held that an ACD with oversight and services was appropriate where, as here, the Family Court had determined that the young person's acts, if committed by an adult, would have constituted assault in the third degree (see Tyttus D., 107 A.D.3d 404, 965 N.Y.S.2d 725 ; Matter of Besjon B., 99 A.D.3d 526, 951 N.Y.S.2d 868 [1st Dept. 2012] ; Matter of Juli P., 62 A.D.3d 588, 879 N.Y.S.2d 134 [1st Dept. 2009] ). Moreover, as discussed above, the Family Court specifically found that A.V. did not intend to cause injury, acted recklessly, and was not responsible for the acts that resulted in the complainants' most serious injuries (see Matter of Juli P., 62 A.D.3d at 589, 879 N.Y.S.2d 134 ).
Appellants' acts in Juan P. , 114 A.D.3d 460, 980 N.Y.S.2d 397 and Narvanda S. , 109 A.D.3d 710, 972 N.Y.S.2d 1 were arguably as bad as, or worse than, A.V.'s, but each resulted in an ACD. In both of those cases, the appellant restrained and forcibly partially undressed and groped a classmate until the young woman managed to get away. In contrast to A.V., each committed those acts on his own volition and despite having a "stable home life" ( Narvanda S., 109 A.D.3d at 714, 972 N.Y.S.2d 1 ) and a "strong social network" ( Juan P., 114 A.D.3d at 467, 980 N.Y.S.2d 397 ). In contrast, A.V. clearly acted while under the control of her father, who instigated the attack and told her to "come out" and join him. Moreover, as Family Court acknowledged, the IR and the neglect petition show that A.V.'s five years in her father's custody was traumatic due to his "questionable parental abilities," and there was no evidence that A.V. was ever in any trouble before or after this incident, despite being subjected to a chaotic family life before being placed in her grandmother's home, which, as Family Court found, was the stable home A.V. had previously been deprived of. Furthermore, A.V. immediately acknowledged and expressed remorse for her part in the attack, unlike Juan P. , 114 A.D.3d at 468, 980 N.Y.S.2d 397 (Richter, J., dissenting) and Narvanda S. , 109 A.D.3d at 716, 972 N.Y.S.2d 1 (Richter, J., dissenting), each of whom was, nevertheless, found suitable for an ACD. The majority cites to Matter of Jaquiya F. , 167 A.D.3d 428, 86 N.Y.S.3d 879 (1st Dept. 2018) for the proposition that a juvenile delinquency adjudication is appropriate where a juvenile has committed a serious offense, would benefit from mental health services and monitoring with regard to school attendance and performance and requires a period of supervision exceeding six months. However, Jaquiya F. did not address at all the appropriate period of supervision, and involved a juvenile who "demonstrated a multitude of behavioral problems at school and at home," and whose acts were found to have caused injuries to the victim ( id. at 428, 86 N.Y.S.3d 879 ). Here, A.V. has no history of serious behavioral problems and there is no evidence that she committed any act that caused injury, or that she intended to cause injury, to either of the complainants. Family Court abused its discretion by declining to impose an ACD.
As noted in the IR, there is no indication in A.V.'s school records or IEP that she has ever been suspended or been in any serious trouble at school, which is consistent with her grandmother's report to the Probation Department investigator that she has no history of cutting class or of being suspended.
The IR states that A.V. "feels terrible about her involvement in the instant offense and shared that in hindsight, she would have removed herself from the altercation." In addition to her acceptance of responsibility reflected in the IR, A.V. did not challenge the Family Court's findings and its sustaining the charge against her of assault in the third degree.