In re Naquan

284 A.D.2d 1, 727 N.Y.S.2d 124, 2001 N.Y. App. Div. LEXIS 6339
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 18, 2001
StatusPublished
Cited by20 cases

This text of 284 A.D.2d 1 (In re Naquan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Naquan, 284 A.D.2d 1, 727 N.Y.S.2d 124, 2001 N.Y. App. Div. LEXIS 6339 (N.Y. Ct. App. 2001).

Opinion

OPINION OF THE COURT

Santucci, J. P.

On this appeal we are presented with the opportunity to address an issue which has resulted in considerable frustration amongst Family Court judges. Specifically, we consider whether the Family Court has the authority to compel compliance with its orders, by a person in need of supervision (hereinafter a PINS), through the issuance of criminal contempt orders or the commitment to a secure detention facility. Although we conclude that the Family Court Act precludes such measures, we believe that the Legislature should revisit the issue.

In November 1998, Naquan J.’s grandmother commenced a proceeding pursuant to Family Court Act article 7 to determine whether he was a PINS. On January 25, 2000, about six months after Naquan’s 16th birthday, the Family Court adjudicated Naquan to be a PINS and placed him in a residential treatment center for a period of 12 months. In the period before and after the PINS disposition, Naquan persistently disobeyed the Family Court’s orders and his failure to stay in various placement facilities resulted in more than 30 warrants [3]*3for his arrest. Consequently, the Family Court, on its own motion by order to show cause, initiated two successive proceedings pursuant to Family Court Act § 156 and Judiciary Law § 750 to punish Naquan for criminal contempt of court. Upon finding that Naquan was guilty of criminal contempt, the Family Court issued a series of orders which, inter alia, committed him to the New York City Department of Correction.

Naquan J. appeals from stated portions of the two contempt orders and the four commitment orders. By decisions and orders on motions dated March 24, 2000, and June 16, 2000, this Court stayed enforcement of the Family Court commitment orders dated March 15, 2000, and May 24, 2000, respectively, pending the hearing and determination of these appeals.

On appeal, Naquan J. primarily contends that the Family Court did not have the authority to use the power of contempt to enforce the orders issued in a PINS proceeding, and that filing criminal contempt charges based upon PINS-type behavior constituted “illegal bootstrapping.”

Judiciary Law § 750 gives a court of record the power to punish for criminal contempt any person who is guilty of, among other acts, the willful disobedience of its lawful mandate. Although the Family Court is a court of record, Family Court Act § 156 limits its contempt power as follows:

“The provisions of the judiciary law relating to civil and criminal contempts shall apply to the family court in any proceeding in which it has jurisdiction under this act or any other law, and a violation of an order of the family court in any such proceeding which directs a party, person, association, agency, institution, partnership or corporation to do an act or refrain from doing an act shall be punishable under such provisions of the judiciary law, unless a specific punishment or other remedy for such violation is provided in this act or any other law” (emphasis supplied).

In light of the language emphasized above, the Family Court must determine whether there is a specific punishment or other remedy for the violation of a court order that supersedes the contempt sanction.

As stated in Family Court Act § 711, the purpose of article 7 of the Family Court Act is to provide “due process of law (a) for considering a claim that a person is in need of supervision and [4]*4(b) for devising an appropriate order of disposition for any person adjudged in need of supervision.” Toward that end, the Family Court Act specifies certain rights and remedies.

For instance, after a PINS petition is filed, the Family Court may, in its discretion, release the respondent or direct his or her detention if it finds that there is a “substantial probability that he [or she] will not appear in court on the return date” or “there is a serious risk that he [or she] may before the return date do an act which if committed by an adult would constitute a crime” (Family Ct Act § 739 [a] [i], [ii]). As a general rule, however, the court may not detain a PINS respondent for more than six days (see, Family Ct Act § 739 [b]). If the PINS respondent thereafter runs away from his or her home or from the custody of the Administration for Children’s Services (hereinafter ACS) where he or she was temporarily placed, a police officer is authorized to return that individual back home or to the custody of ACS. However, Family Court Act § 720 (1) provides that “[n]o child to whom the provisions of this article may apply, shall be detained in any prison, jail, lockup, or other place used for adults convicted of crime or under arrest and charged with a crime,” and section 720 (2) provides that “[t]he detention of a child in a secure detention facility shall not be directed under any provision of this article.”

After a child is adjudicated to be a PINS, Family Court Act § 754 (1) lists four dispositional alternatives that are available to it: (1) discharge the child with a warning; (2) suspend judgment in accordance with the provisions of Family Court Act § 755; (3) continue the proceeding and place the child in accordance with the provisions of Family Court Act § 756; or (4) put the child on probation in accordance with the provisions of Family Court Act § 757 (see, Family Ct Act § 754 [1]).

Significantly, if the child fails to comply with the terms and conditions of the dispositional alternative imposed at the time of the PINS adjudication, article 7 provides the Family Court with specific remedies (see, Family Ct Act §§ 777, 778 and 779 [all of which essentially state that the court may, upon competent proof that the respondent has violated the order, revoke its original order and make any order that might have been made at the time the original order was made]). Finally, the Family Court also may transfer a PINS to another placement facility upon a finding that he or she is “incorrigible and that his or her presence is seriously detrimental to the welfare of the applicant institution, society, agency or other persons in its care” (Family Ct Act § 773 [a]). However, none of these rem[5]*5edies include criminal contempt or the commitment of a PINS individual to a secure detention facility. Therefore, even when faced with a situation where the PINS respondent persistently absconds from every nonsecure placement facility in which he or she has been placed, the Family Court may not rely on such circumstances to compel placement in a secure facility.

Notwithstanding the foregoing provisions, the Family Court in this case determined that article 7 did not provide an adequate remedy for Naquan’s chronic runaway behavior and persistent disobedience of court orders. Thus, the court relied on Judiciary Law § 750 to issue orders of criminal contempt, followed by orders that committed Naquan to secure detention facilities. According to Judge Hepner, a PINS respondent is not exempt from criminal contempt charges based on the willful disobedience of clear court mandates.

Although there are no appellate cases which directly deal with the factual situation presented herein, it has been held that the Family Court exceeded its statutory authority by issuing contempt orders in other types of proceedings (see, Michael N. G. v Elsa R., 233 AD2d 264 [in a child custody proceeding, the Family Court could not resort to the contempt statute because the Family Court Act contains a specific remedy for the enforcement of visitation orders];

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Cite This Page — Counsel Stack

Bluebook (online)
284 A.D.2d 1, 727 N.Y.S.2d 124, 2001 N.Y. App. Div. LEXIS 6339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-naquan-nyappdiv-2001.