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MATTER THREE "JOHN" *FN* (12/12/69)

FAMILY COURT OF NEW YORK, NEW YORK CITYWIDE CHILD ABUSE TERM 1969.NY.43974 <>; 306 N.Y.S.2d 797; 61 Misc. 2d 347 December 12, 1969 IN THE MATTER OF THREE "JOHN"*FN* Douglas Besharov, Andrew Freedman, Harold A. Mayerson and Herbert O. Brown for children in all cases. Hortense R. Landau for New York County SPCC in the "John" proceeding, petitioner. J. Lee Rankin, Corporation Counsel (Samuel Felder of counsel), for Bureau of Child Welfare of Department of Social Services of City of New York, petitioner; Myra L. Graubard of counsel in the "Smith" proceedings; Peter Steckler of counsel in the "Grey" proceedings, and Sara Schecter of counsel in the "Ford" and "Bond" proceedings. Fred Samuel, Chief Counsel, Harlem Assertion of Rights (Carl O. Callender of counsel), for "John" parent, respondent. Shyleur Barrack and Michael M. Lippman, Legal Aid Society, for "Smith" parent, respondent. Claudius S. Matthews and Arthur S. Rosen for "Ford" parent, respondent. Milton L. Williams and Mark P. Denbeaux, Hunts Point Legal Services, for "Grey" parent, respondent. Goldstein & Goldstein (Hyman E. Goldstein of counsel), for "Bond" parent, respondent. Millard L. Midonick, J. Author: Midonick

Millard L. Midonick, J.

Author: Midonick

 The common issue arising in all of these cases concerns the constitutionality of the new article 10 of the Family Court Act insofar as it affects the presumptively mandated removal of custody of children from a parent if the parent is adjudged to be addicted to narcotics.

On June 1, 1969, chapter 264 of the Laws of 1969 became effective, enacting a new article 10 of the Family Court Act, establishing a new proceeding in the Family Court for the protection of "abused" children.

Hitherto article 3 of the Family Court Act has provided for protection of "neglected" children. Any child who is "abused" is also "neglected", but many forms of non-intentional "neglect", or neglectful conduct not resulting in "serious" physical or mental injury, do not amount to "abuse".

In response to mounting concern that children exposed to more serious forms of injury than ordinary neglect require legislatively mandated special protective procedures, hospitals, doctors, social services workers, school officials, court clerks, probation officers and Judges are mandated to expedite reports and hearings, and (presumptively) to remove or withhold children from the custodians responsible. Neglect proceedings are handled without necessarily expediting each case, and removal of the child from the erring parent is discretionary instead of presumptively mandatory as in the cases of abuse.

An "abused child" is defined as "a child under the age of sixteen years who has had serious physical or mental injury inflicted upon him by other than accidental means or who is in the care and custody of a parent or other person who has been adjudicated a narcotic addict." (§ 1012.)

That an "abused" child is always also "neglected" can be readily seen from the definition in the old section 312 which still reads:

"§ 312. 'Neglected child'. A. 'neglected child' means a male less than sixteen years of age or a female less than eighteen years of age

"(a) whose parent or other person legally responsible for his care does not adequately supply the child with food, clothing, shelter, education, or medical or surgical care, though financially able or offered financial means to do so; or

"(b) who suffers or is likely to suffer serious harm from the improper guardianship, including lack of moral supervision or guidance, of his parents or other person legally responsible for his care and requires the aid of the court; or

"(c) who has been abandoned or deserted by his parents or other person legally responsible for his care."

One serious inconsistency which should be corrected by the Legislature, concerns equivalent age coverage for neglected and abused children. It is unsupportable that a girl over 16 but under 18 years of age can be "neglected" but not "abused". If she can be neglected during this vulnerable two-year period, how much more indefensible that she can be "abused" without the additional help under article 10? Beatings and sexual molestation by parents are quickly exposed as "abuse" for girls under 16, and should be so for those under 18. These two critical years are the school "drop-out" age, when over-reaction by parents is not uncommon. Indeed article 7 should be expanded to help parents control ungovernable boys up to age 18, as girls are now; such new supervisory power could be used for example to require boys to continue their education, if parents are so minded, and if the Family Court Judge concurs. Parents are entitled to the assistance of the power of this court, for their boys as well as girls, through age 18.

The five proceedings before the court herein concern only the narcotic-addict parent aspect of this new statute, since this aspect alone has come under direct constitutional attack almost daily by representatives of parents, and its meaning is less clear and might be subject to more arbitrary application than the provisions forbidding abuse by parental serious physical and mental injury to their children.

A motion to dismiss one of these proceedings ("John") is expressly based upon failure to allege that the parent "has been adjudicated" a narcotic addict in a proceeding prior to the one at bar, and that therefore the petition fails to state a cause of action. This motion is denied. We hold that the Legislature intended by the words "has been adjudicated a narcotic addict", that the Family Court can so adjudicate in the proceeding before us. (§ 1012.) The phrase "has been adjudicated" means adjudicated prior to our finding of child abuse, not prior to the filing of the child abuse petition herein, and therefore this petition is not premature. Preferably, section 1012 should be amended, to conform with this construction, to read "is a narcotic addict". This intent is evidenced, even as the article now reads, by the cognate section 1019 which provides that "upon the filing of a petition under this article which contains an allegation that" the child's custodian "is addicted to the use of narcotic drugs, the court shall hold a preliminary hearing to determine the sufficiency of such allegation and if the court, at the conclusion of such hearing, determines that the temporary removal of such child from his home is in the best interest of the child, an order shall be entered providing for the temporary placement of the child." If thereafter this court must await a jury's verdict and judgment of narcotic addiction from another court, our further proceedings would be virtually unnecessary and meaningless because under Mental Hygiene Law such persons are required to be removed from the community until they are no longer addicted. Indeed, section 206-b of the Mental Hygiene Law forbids that "facts or proceedings relating to * * * certification or treatment of any such narcotic addict be used against him in any proceeding in any court". Consequently, if Family Court cannot adjudicate the issue of narcotic addiction, no court can for purposes of child abuse. (Mental Hygiene Law, §§ 207, 208 et seq.) Moreover, a substantial number of our drug addiction petitions proceed to admissions of such allegations in open court, after appropriate warnings; surely these are cases further illustrating that Family Court final adjudications of narcotic addiction are intended to be appropriate. Several such parents asked this court for help and are now required to remain at Stuyvesant Square Residential Center of the Salvation Army for a period not to exceed 18 months; others can be considered for intake by Odyssey House, by Phoenix Centers, and other licensed establishments for residential care for this malady.

We also hold that the "adjudication" of "narcotic addiction" when made in Family Court, requires no jury trial such as is mandated by the Court of Appeals in People v. Fuller (24 N.Y.2d 292) and in Matter of James (22 N.Y.2d 545). Compare Matter of Irving "S" v. Larry "S " (60 Misc. 2d 359). Unlike the proceedings under the Narcotic Addiction Control Law (Mental Hygiene Law, §§ 207, 208 et seq.), the adjudication in Family Court does not lead to "incarceration" for rehabilitative therapy of the addict, whether for the three-year or the five-year duration. No power to supervise or restrain the liberty of the addict is given to the Narcotic Addiction Control Commission as a result of our Family Court finding. The primary consequence flowing from our finding of narcotic addiction, which results in many of our proceedings, including four of the five cases before us now, is to protect the child of such a parent by separating the child from the parent (i.e., by removal of the child, unless the presumption is rebutted as in one of these cases), and by conditioning the return of the child to the parent upon safeguards such as safe chaperonage, therapy, freedom from habituation or use of narcotics, and official supervision of the child's home. All of these remedies are administered in the community, not in confinement, with the exception of this court's power during or after a judicial hearing, to remand to a hospital a parent or person charged with abuse, for no more than 30 days for physical and psychiatric study or observation, and for "theraputic treatment" and report. (Family Ct. Act, § 1021.) This power we have had for many years during and after a hearing under any of our many jurisdictional areas. (Family Ct. Act, § 251.) It was the entire absence of any opportunity for a suspect to be heard judicially before a remand which vitiated the ultimate finding of addiction in Matter of James, (supra, p. 551).

If a Family Court order of protection or of probation or of suspended judgment, which is based upon a judge's adjudication and disposition without a jury, can validly mandate in-patient or residential treatment of an addicted parent, a willful violation of the order carries a maximum commitment to jail of six months. See section 1017 which incorporates sections 841, 842, 843 and 846, as well as subdivision (g) of rule 8.3 (22 NYCRR 2507.3 [a] [7]) which specifies as a term that respondent parent co-operate in seeking and accepting medical and/or psychiatric treatment, and sections 353, 354, 356, 371 and especially 372 (Family Ct. Act). If this includes residential treatment, and if residential treatment is tantamount to "incarceration", we must address ourselves to the unavailability in Family Court of a jury trial, and the holdings of the Court of Appeals in Matter of James (supra) and People v. Fuller (supra) that such jury trials are a precondition of the three-and five-year maximum residential confinement for narcotic addiction facility treatment in civil as well as criminal addiction trials. Such confinement under Narcotic Addiction Control Commission auspices is to a State facility, whereas the Family Court has access only to the various hospitals (short maximum term of 30 days) and to the many private facilities which are not locked and are not incarceration prisons at all. The shorter six-month maximum jail term allowed under the Family Court Act for willful refusal to comply with long-term in-patient treatment orders, avoids the jury requirement. (Cheff v. Schnackenberg, 384 U.S. 373; cf. Matter of Hogan v. Rosenberg, 24 N.Y.2d 207; and see Duncan v. Louisiana, 391 U.S. 145, 160-162, excluding from the jury trial requirement six-months terms, leaving open the issue of maximum one-year jail terms for misdemeanors.) This may be the current view of the Administrative Board of the Judicial Conference, composed of the Chief Judge of the State of New York and the four Presiding Justices of the Appellate Divisions, who have on November 17, 1969 promulgated the rule under 753 and 754 of the Family Court Act (22 NYCRR 2506.6 [a] [16]), to permit as a term and condition of probation for any child adjudged a juvenile delinquent or "person in need of supervision" (ungovernable child), also without benefit of jury, that he or she, for an initial period not to exceed two years for delinquency or one year for ungovernability (plus an additional year at extension hearing), "(16) take clinic or similar treatment for narcotic addiction at a hospital or other facility where such treatment is available if there is a record, report or other evidence satisfactory to the court that he is addicted to the use of drugs."*fn1 Whether or not jury trials are required for long-term "imprisonment," long-term (five year) probation may be awarded enforceable by a six-month imprisonment if terms of probation are violated -- all without a jury trial; and since this protection is denied to adults (Frank v. United States, 395 U.S. 147; cf. Cheff v. Schnackenberg, 384 U.S. 373, and Bloom v. Illinois, 391 U.S. 194), denial to minors as well does not withhold equal protection.

Since no standards are set forth in article 10 of the Family Court Act defining the words "narcotic addict", we find that it was the legislative intention to adopt the standards of the Narcotic Addiction Control Law (Mental Hygiene Law, art. 9, §§ 200, 201 et seq.), so recently enacted as State policy -- a person "who is at the time of examination dependent upon opium, heroin, morphine or any derivative or synthetic drug of that group or who by reason of the repeated use of any such drug is in imminent danger" of such dependency. (Mental Hygiene Law, § 201, subd. 2; added by L. 1966, ch. 192, § 2, eff. April 1, 1966.) And we depend also upon the helpful translation of that concept into medically recognized components as analyzed by the Court of Appeals in People v. Fuller (24 N.Y.2d 292, supra.)

In one case involving the "Smith" child before us now, where the issue of addiction was contested in fact, the medical history given by the respondent mother in the records of the hospital where the infant involved was recently born (June 23, 1969) indicated that she had for six years last past injected 10 "bags" of heroin daily into her blood stream, and that she had administered a dose to herself four hours before delivery of her baby. The attending doctor testified that her baby was born normally and without apparent symptoms until 24 hours after birth, that then the baby began to exhibit the unmistakable narcotic withdrawal symptoms: preconvulsive tremors, hyperactivity, incessant crying, ravenousness alternating with vomiting. Illnesses with partially similar symptoms were ruled out. Sedatives (phenobarbitol), dark and quiet were required for seven days before the child became physically well. Without careful therapy, the child might have suffered convulsions and death. To give rise to such symptoms, the mother must have been regularly using large quantities of heroin (as she substantiated by her history) for considerable time before her confinement; the placenta permits ready transfer of heroin from mother to fetus. Had she injected heroin not habitually but only shortly before child's birth, massive doses may have killed her and the newborn child, or the baby would have been sedated instead of hyperactive and suffering withdrawal. Only high tolerance (a strong and perhaps a sufficient basis for a finding of narcotic addiction without the additional history) for both the mother and baby would cause the medically observed course of events found here. (Cf. People v. Fuller, supra.)

We hold that the obvious harm to the newly born child of such narcotic addiction as described above, shields the legislative mandate of section 1022, requiring, presumptively at least, temporary removal of the child, from due process and equal protection defect. Section 1022 reads: "Disposition after hearing. After a hearing upon all of the allegations of the petition, if the court shall determine that such allegations are established [i.e. adjudication of narcotic addiction in the proceeding itself, not necessarily one who previously under another law 'has been adjudicated a narcotic addict' -- § 1012], the court shall enter an order directing the removal of such child from his home until such order is modified, and providing for his placement as the court shall determine." (Emphasis added.)

We also hold, over objection of the respondent parent, that the hospital record as to her is admissible, because all confidentiality in the doctor-patient relationship has been by law removed when the evidence relates to or can be connected to child abuse. (Family Ct. Act, § 1018; Social Services Law, § 383-a, subd. 1-b; CPLR 4518 [subd. (a)].) The separate hospital record as to the child allegedly abused is of course also admissible on the same ground, as well as for the reason that the child's own counsel waives the privilege.

The evidence with respect to the "Ford" child was most instructive of all as to the dangers encountered by babies born having withdrawal symptoms. This baby had morbid tremors together with symptoms of hyperactivity about two hours after birth, the mother having had her last heroin injection six to eight hours before these symptoms appeared. After one day the baby showed symptoms also of excessive crying, compulsive thumb sucking, vomiting and diarrhea. Paregoric, the remedy usually best for this condition, was administered for one week, with little improvement. It is instructive to note that paregoric is itself an opiate, and thus that the addiction must usually be treated with a related and addictive drug. In this case, the baby did not improve for a week, and consequently the sedative barbiturate phenobarbitol was prescribed, gradually controlling the symptoms about two weeks after birth. This baby required careful hospital treatment for five long weeks before release from the hospital as a well baby. Dr. Lutgarda Vasquez, a diplomate in pediatrics who serves as director of nurseries at Long Island College Hospital, gave in evidence the benefit of much expert research and scientific study known to the medical profession. Babies subject to heroin withdrawal symptoms at the time of birth are labeled as suffering from "congenital morphinism" or "narcotic addiction in the new born." Such clear symptoms in the newborn cannot occur unless the mother is a narcotic addict, that is, dependent on narcotic drugs and, of course, in imminent danger of such dependency, as defined in section 200 and subdivision 2 of section 201 of the Mental Hygiene Law. The usual delivering mother is in danger of such dependency, or actually dependent, if she has been daily injecting heroin into her blood stream for at least two weeks prior to the birth of her child, in doses of six to twelve milligrams daily. No one but the wholesale "pusher" knows how strong the contents of the glassine envelopes may be, and so the symptoms must be the indicator.

If the child of such a narcotic addicted mother is untreated, the rate of mortality within the first month of life is 50% to 93% depending on the excessiveness of the dosage and the sturdiness of the baby. Even if treated in the usual hospital setting in the United States, the rate of infant mortality during the first month of life is 9%. If treated intensively and expertly from the first sign of symptoms, the mortality of such babies approaches the norm, which at Long Island College Hospital is 0.7%, that is, less than one tenth the average rate of death for those with congenital morphinism. Translated into deaths per thousand during the first month of life, the average of all babies is seven per thousand; of all babies with average treatment (not intensive) for congenital morphinism, deaths are 90 per thousand; and the deaths for such untreated babies are 500 to 930 per thousand, depending on the acuteness of the morphinism and the health of the baby. Whichever figures are applied, the menace to the baby's life at this critical stage is unusual. If death does not ensue, but convulsions do, brain damage is to be expected. The baby which was at the focus of this evidence, and whose hospital treatment extended over five weeks, was gauged as having light to moderate morphinism illness.

Attorneys for another parent, in the "Grey" case, seek to annul the new statute for alleged constitutional defect, in that narcotic addiction alone was established, without proof of medical harm to the children. Indeed in that case, the mother had been recently formally adjudicated a narcotic addict under the Narcotic Addiction Control Law (Mental Hygiene Law, art. 9), in the Supreme Court, by her own formal admission and plea. She was actually committed by the Supreme Court in October, 1969 for a residential confinement of three years, subject to parole and supervision by the Narcotic Addiction Control Commission. She was later produced before this court for hearing from the Matteawan narcotic facility for women in Beacon, New York in which the Narcotic Addiction Control Commission had placed her.

The evidence revealed that her child was two years of age when the hearing and adjudication in the Family Court took place in November, 1969, and that the respondent mother had been addicted for approximately six months. Thus no withdrawal symptoms nor any physical transmission of heroin to this child could be proved.

Nevertheless, the respondent mother was committed and totally unable to take personal care of her child by reason of the narcotic addiction commitment. Moreover, she testified that the child's father was confined in jail for an unrelated offense, so that no parent was available nor was care made available by either parent or other responsible person.

We hold therefore that a parent who has been committed because of narcotic addiction, thereby "abuses" her child by reason at least of the abandonment caused by the addiction. The new statute is not vulnerable to attack merely because in such a posture the child is deemed " abused" instead of "neglected". The same sanctions, ...

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