In re James H.

41 A.D.2d 667, 341 N.Y.S.2d 92, 1973 N.Y. App. Div. LEXIS 5094

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1973
• Status: Published

Opinion

Appeal from an order of the Family Court, Kings County; dated. March 28, 1972, which adjudged appellant -to be a juvenile delinquent and directed that hé be placed in the custody of Division for Youth for 18 months. ’ Order affirmed. The minutes of ' the factrfinding hearing disclose .that sometime prior to the beginning of the hearing (but apparently in the .presence of the law guardian), the trial court was informed by a probation officer that this was.a “Training School” case. The court denied a motion by- the .law' guardian to disqualify itself , and that denial is' claimed to' be error. Subdivision (b) of section 746 of the Family . Court Act.provides that' probation reports may not be furnished to the court prior to the completion of. a, fact-finding hearing. Similar provisions appear in other parts of the Family Court Act (§ ’835 [family-offense proceedings]; § 1047 [child protective proceedings]). It is thus the clear policy of the law that the probation service shonld not communicate reports to the court concerning the alleged delinquent' until - the fact-finding hearing is completed. Any practice tending to weaken, that-policy should' hot -be. éncouraged. Even ' though the court may not be in fact influenced by what it hears, it is the appearance of prejudice against which the policy is directed;-and. the violation-of the ■ statute, albeit inadvertent, should be. avoided., However, the evidence on this record is altogether convincing -in establishing .the delinquent conduct of appellant and for that reason .the action of the probation officer should not be considered as reversible error. Hopkins, Acting P. J., Latham, Gulotta, Bren-. non and Benjamin, JJ., concur.