IN RE: JENNIFER G. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: JENNIFER G. (Anonymous), appellant.

Decided: February 21, 2006

ROBERT W. SCHMIDT, J.P., THOMAS A. ADAMS, DANIEL F. LUCIANO, and REINALDO E. RIVERA, JJ. Lewis S. Calderon, Jamaica, N.Y., for appellant. Eliot Spitzer, Attorney-General, New York, N.Y. (Michael S. Belohlavek and Patrick J. Walsh of counsel), in his statutory capacity pursuant to Executive Law § 71. Simpson Thacher & Bartlett, LLP, New York, N.Y. (Joseph F. Tringali, O. Andrew F. Wilson, and George R. Morris of counsel), for Lawyers for Children, Inc., amicus curiae.

In a proceeding pursuant to Family Court Act article 7, Jennifer G., the person alleged to be in need of supervision, appeals from an order of the Family Court, Queens County (DePhillips, J.) dated May 30, 2003, which, sua sponte, determined that Family Court Act § 720(2) is unconstitutional.

ORDERED that the order is reversed, on the law, without costs or disbursements.

 Contrary to the conclusion of the Family Court, Family Court Act § 720(2) is not constitutionally infirm.  “The Legislature is not precluded from treating different classes of juveniles differently” (Matter of Keith H., 188 A.D.2d 81, 85-86, 594 N.Y.S.2d 268) and the statute is rationally related to the legitimate State interest of precluding the institutionalization of PINS whose “misconduct does not amount to criminal activity and [for whom] the emphasis is on supervision and treatment rather than confinement” (id. at 87, 594 N.Y.S.2d 268).

 The provision is, moreover, not violative of the separation of powers doctrine since the Family Court's inherent contempt authority is expressly limited by Family Court Act § 156 (see Matter of Naquan J., 284 A.D.2d 1, 727 N.Y.S.2d 124;  Matter of Edwin G., 296 A.D.2d 7, 742 N.Y.S.2d 53).  “To the extent that the courts may have some discretion to adjust their procedures in areas involving the ‘inherent nature of the judicial function,’ the courts may not exercise that discretion in a manner that conflicts with existing legislative command” (People v. Mezon, 80 N.Y.2d 155, 159, 589 N.Y.S.2d 838, 603 N.E.2d 943, quoting Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5-6, 511 N.Y.S.2d 216, 503 N.E.2d 681).

Finally, Family Court Act § 720(2) is not preempted by the Juvenile Justice and Delinquency Prevention Act (see 42 USC § 5601 et seq.) which permits, but does not mandate, the secure detention of juvenile status offenders who violate court orders (see 42 USC § 5633[a][11][A][ii] ).   Indeed, New York has declined to adopt that optional provision as part of its statutory scheme.

While we remain mindful of the frustration Family Court judges frequently feel while attempting to compel recalcitrant PINS to comply with Family Court orders, the Family Court Act, as presently structured, prohibits the commitment of PINS to a secure detention facility and the issuance of a criminal contempt order (see Matter of Naquan J., supra;  Matter of Edwin G. supra;  Matter of Victoria S., 297 A.D.2d 323, 746 N.Y.S.2d 264;  Matter of Asia H., 289 A.D.2d 404, 734 N.Y.S.2d 230;  Matter of Jasmine A., 284 A.D.2d 452, 727 N.Y.S.2d 122).   Rather, as we have previously noted, the resolution of this dilemma rests with the Legislature (see Matter of Naquan J., supra at 7, 727 N.Y.S.2d 124;  Matter of Edwin G., supra at 12, 742 N.Y.S.2d 53).

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