Grant v. Cuomo

al., and All Themselves Others et on Behalf of Lisa Grant Carolyn al., Situated, Lee et Similarly Respondents, Situ- Similarly and All Others on Behalf Themselves M. as ated, v Mario Intervenors-Respondents, Cuomo, al., Defendants, York, et of the State New Governor York, I. of New Mayor City and Edward Koch, al., Appellants. et July Department,

First OF COUNSEL APPEARANCES (Grace him P. of counsel Goodman with Frederick Schaffer Corporation Schwarz, Jr., brief; A. Coun- on the Frederick O. appellants. attorney), sel, for (Vivien

Raymond Shelanski, Jr., Falls, L. B. of counsel Cannon-Geary L. with him on and Irene S. Ellen Weintraub Hayes, Cahill, brief; Gordon and Robert M. the attorneys), & Reindel intervenors-respondents. respondents and OPINION OF THE COURT J. P. Sandler, origi- injunctive declaratory seeking relief

In an action and organizations, nally commenced four families and three plaintiffs their claim that the several defendants have violated provide obligations under to services Child Child Protective of 1973 and the Services Act complaint alleged in sub- Welfare Reform Act of 1979. The plaintiffs, regard families other stance with similarly had situated, said to that the several defendants risk of to with failed to make available families children law mandated removal to foster care required permit remain those children to that were to complaint alleged that the several families. The further obliga- comply with their defendants had failed

157 provide protective tion to children danger child abuse and maltreatment.

Following counsel, original court conference with families withdrew as party plaintiffs agreement on their the defendants had satisfied their claims to preven- individual Thereafter, tive services. asserting two other families substan- tially granted, permission the same sought, claims and were intervene. 27,

The defendants an appeal May from order dated Court, Supreme County, New York the extent to which (1) granted the motion of the for a intervenors-plaintiffs preliminary injunction requiring city pre- defendants pare plans 30 days, within and thereafter (2) all plans, granted recommended in such mo- organizational tion of plaintiffs injunc- preliminary tion requiring city investigations defendants commence reports of suspected neglect abuse within hours (3) reports, of such receipt denied the motion of the city defendants for summary judgment dismissing the com- (134 83). plaint Mise city 2d appeal defendants also 7, order entered August granted which their motion renew, but thereupon original adhered to the court’s deter- mination.

The issues on this appeal concern interpretation enforcement major pieces two in the legislation area (So- child welfare—the Child Protective Services Act Services Law 411 et seq.), cial regulates the provision of protective to children, services and and abused maltreated (Social the Child Welfare Reform Act of 1979 Services Law 409 et seq.), regulates the of provision § services to children.

Protective refer to the system reporting investigating suspected neglect cases of child and for abuse protecting children to providing rehabilitative (Social 411; them and 18 parents. their Services Law NYCRR § 432.) part Preventive services are and rehabilita- supportive tive designed to avert of children placement care, foster to enable children in foster care to return to date, families the likeli- possible the earliest or to reduce hood that foster care discharged children who have been (Social et seq.; will be 18 returned to it Services Law § 430.9). parts NYCRR alleged legal presented regard

The issues failure with discharge of the defendants to controlling their duties under the two fundamentally in character. statutes are different city comply to As to the claimed violation of the defendants provide protective statutory duty services, it with their to is (6) requires agreed § each child Social Services Law upon receipt report suspected service, aof twenty-four maltreatment, commence, "to abuse or within appropriate investigation”, hours, and that in a certain an per being percentage cases, exact cent a matter of disagreement, comply city to with defendants have failed regard part statutory The with direction. issues by city’s contention that the court’s order are raised plaintiffs standing organizational action, lack maintain by Special circumstances, under all the issuance requiring compliance injunction with an full Term of improvident provision represented exercise of discretion. part the claim of

As of the court’s order addressed to intervenors-plaintiffs services, the central interpretation presented the relevant issues concern Act 1979. Child Welfare Reform The first sections question by whether, is as contended and plaintiffs fundamental most Special implicitly Term, held Social Services regulations together 409-a, with Law when considered Department promulgated by of Social York State the New (18 430.9), imposes an uncondi- [d]; Services NYCRR 423.2 obligation provide preventive nondiscretionary ser- tional regulations. vices under defined in the certain circumstances by Special is Term’s second issue of construction raised plan, ser- a child which a social determination that required § 409-e to under Law vices district is Social Services being respect prepare consid- each child identified placement care, in the nature ered for foster obligated city court, and that the contract enforceable plan in that all available services recommended (3) right subject only to revise the under subdivision its plan from time to time.

Turning city’s conceded first to the issues raised obligation fully comply inves- to commence failure with its tigations reports within of of child abuse or maltreatment recognize the hours, the demonstration we that factual standing support organizational plaintiffs to seek their of light unimpressive judicial of the is when considered relief requirement organizations established that such demonstrate that have a injury suffered result of defendants’ (See, Socy. Carey, Matter Dental v actions. 61 NY2d of Legal Dudley, MFY 706.) Matter 334; Servs. v 67 NY2d of the

As defendants argue, the claim of the correctly organizational plaintiffs to have suffered an of injury by way an added burden on their presented general resources is only. hand, terms On ignore the other we cannot the obvious fact if organizations that of standing, this kind denied the practical effect would be to from review the exempt judicial defendants, conceded, failure of the here with their comply obligations. statutory abused are not Manifestly, the children able a judicial remedy, themselves to seek nor it that likely is parents caretakers, the of objects of claims abuse or maltreatment, would undertake a Given remedy. secure reality protection obvious of abused or maltreated children is a given central concern of society, our and organizations historic relationship concerned the care with and protection of goals sought children achieved statute, relevant we are persuaded Special Term was justified in denying the motion to as to dismiss organizational plaintiffs.

Turning appealed the merits of this part order from, city acknowledge statutory obliga- defendants their tion to investigations commence reports suspected neglect abuse or reports, within hours of the receipt such and their failure to achieve full compliance statutory with the In direction. their appeal injunction preliminary requiring compliance statutory obligations, city with their inappropriate defendants relief injunctive contend they acknowledge because have statutory obligations, their compliance, presently increased rate steadily their have achieved with very compliance substantial obligations, will soon procedures have instituted bring the extent possible compliance. about the maximum To achieved, full is con- compliance has not been error, tended that human part the failure attributable injunctive effected inherently susceptible being relief, circum- budgetary variety of administrative stances that are intervention. inappropriate judicial sought by organizational

This relief branch Term, in a genesis has its plaintiffs, granted by Special compliance report statistical for 1985 that indicated in only within 24 hours investigations obligation commence figure represented apparent cases, an of the a that 89% previous year’s apparently thus retreat from the results and improvement. ongoing city belied claim of defendants the presented follow-up indicating year the have studies for that figure part by reporting, the was in affected errors 89% figure compliance probable the of for 1985 was that true 95%. figure, precisely the accurate Whether or not fact 95% follow-up support that the true the studies do the conclusion compliance greater 89%, and well have rate of was than figure necessarily means that been But even a 95%. 95% reports numerically significant number of of there were responded by not maltreatment that were abuse and investigations statutorily commencement within the the of period. mandated 24-hour noncompliance ongoing cannot be set

The reasons for this precision. part, may In assumed that forth with absolute be something error, to human some instances are attributable by injunc appropriately addressed the usual situation 582.) part, (Cf., Codd, In 47 NY2d the tive relief. noncompliance Bruno v appear to be the result of a combination would by city set self-evaluations of factors forth different budgetary alloca the failure of defendants. These included pace increasing complaints keep rapidly of child tions among assigned high personnel abuse, a rate to what attrition finding difficulty duty, onerous often a difficult and persons, possibly promptly training qualified failures assigned among offices communication several responsibility. appropriateness injunctive

Undeniably, relief presents circumstances in this record under the disclosed entirely In the absence is not free from doubt. issue good responsible city any to doubt the faith reason agencies, contempt, tool for the threat of traditional inappropriate. appear enforcing injunctive relief, to be would problems budgetary and administrative And nature appear that courts in the of a kind detailed record does not specific by as to how directions are well suited to address person how concerned should be allocated and as to funds supervised. organized hand, the other nel On should degree noncompliance unacceptable persistence of an affecting statutory specific the welfare with a direction this lawsuit children, and the undoubted fact abused governmental brought at concern and about increased itself persuades problem, suffi- there was a us that tention to the Special cient basis for Term relief injunctive to conclude followed steps city agencies review taken would respond purpose. serve a valid Turning plaintiffs to the claims of the individual that defen- dants obligations have violated preventive services, presented plaintiffs’ the central issue is (Social claim Child Welfare Reform Act of 1979 seq.), et Services Law 409 when together considered with the of regulations the New Department York State of Social (18 430.9), Services NYCRR imposes a nondiscretionary duty in forth regulations findings circumstances set in the to make which mandate the provision preventive of services. Plaintiffs’ central thesis is set forth in clearly appellate brief in the following language: "Respondents disputed never appel- have which of menu lants’ discretion as to a of preventive services provided However, must be under appropriate circumstances. do the respondents dispute notion that such discretion extends the initial determination that a child is at risk of foster care and in need of preventive services.”

It is on of the basis of construction the statute that plaintiffs contend that issues controlled the decision (61 Klostermann v Cuomo of the of Court Appeals NY2d 525), in which the court found a sufficient legally complaint seeking relief declaratory and mandamus on the claim that the State agency discharge had failed to nondiscretionary a statutory duty services, to provide in the face of the conten- tion of the State agency its discharge that failure duty resulted discretionary administrative judgment toas of budgetary allocation limited appropria- tions and was accordingly nonjusticiable.

As becomes apparent on analysis, the construction of statute urged by plaintiffs part is critical both to that of court’s order enjoined the defendants a service prepare plan and plan the services set forth intervenors-plaintiffs, as part well to that of court’s order that denied the defendants’ motion for summary judg- ment dismissing complaint to the extent to which sought system-wide relief. declaratory

If the findings precondition obligation which are a provide mandated preventive involved discretion services officials, judgment part on the it is clear local social services Term, an order injunction granted Special effect mandamus, regard principles violated well-established mandamus, of the appropriate remedy individ- ual of the to them of plaintiffs was seek review denial hearing subsequent in a fair judicial if determination proceeding review a CPLR article hearing. if the statuto- Similarly, was sustained after fair rily required findings involved the exercise discretion would declaratory it is clear that relief judgment, system-wide would involve presented sepa- be unavailable since issues rate exercises and discretion social judgment in widely varying officials circumstances. Reform Act was "to purpose Child Welfare policy providing permanent

delineate a state homes risk high who are foster care or at currently children (Mem Pisani, R. entering Joseph foster care.” Senator NY 352.) sought Legis Ann, purpose was be accom- This to main- plished by emphasis "a new possi- family relationships tain and reunite families whenever (Ibid.) necessary This found because approach ble.” new was been exacer- problems system of the foster care have "[t]he provide lack of incentives to local to bated a district[s] avert services which in some cases need preventive op. cit., 353). (Pisani mem, for foster care” (ibid.): "The As further set forth in the Pisani memorandum and preventive places provision bill redefines services bill delineates funding within an enriched formula. with planning caring standards for for children clearly Furthermore, goal permanent possible. homes whenever stan- meeting these bill holds districts accountable for dards or suffer loss of reimbursement.” Reform Welfare purposes,

Consistent with these the Child Act and rehabilita- preventive "supportive defines services as: * * * for and their families provided tive services children of a disruption of: an or purposes averting impairment a child placement in the which will or could result family in placed been foster care; enabling in foster a child who has would his at an earlier time than family care to return child likelihood that a possible; reducing otherwise be care return discharged has from foster would who been 409.) (Social Services Law such care.” § respect services, preventive provision With Child Welfare Reform Act (Social Services Law § 409-a ^[1] [a]) shall services official part: "A social provides in relevant in family, his child and preventive services to a plan required by accordance with the child’s service section chapter four hundred nine-e this social services plan approved district’s child welfare services submitted and pursuant chapter, upon four section hundred nine-d (i) finding by placed such official that the child will be provided in continued foster care such unless services are by providing that it is reasonable to believe such services the family”. will be able to with or be remain returned his (2) provides: §

Social Services Law "A 409-a further social provide preventive services official is authorized to a child and his services to family accomplish purposes set forth in chapter, section four nine hundred of this when such services required provided pursuant are not to be to subdivision one of this section.” (1) provides

Social Services Law 409-b substance for "(a) seventy- reimbursement to each social services district of per expenditures five centum of allowable provided pursuant one to subdivision of section four * * * (b) fifty per hundred nine-a of this title centum of expenditures provided pursu- allowable ant to subdivision two of four section hundred nine-a of this title”. plan”, § 409-e,

Social Services Law entitled "Child service record-keeping provides effect act, section of the sub- perform stance that the social services assess- district shall ment of each child and his circumstances accordance procedures prescribed by Depart- and criteria ment where the child has been "identified social being placement district as considered for foster care as chapter” ninety-two defined in section three hundred of this (subd [1]). (2) § Social Services Law the social services 409-e directs upon plan district to establish and a maintain child completion alia, assessment, include, of the inter which shall availability required identification of and their services provided. the manner in which are to (3) and revision Social Services Law 409-e directs review guardian, plan, parent where consultation with the every appropriate, days six at least within the first 90 things, provides, among other months thereafter. It types, services review dates and sources of shall indicate provided. actually that have been presented part of Social Services Critical issue (1) (a) obligates § 409-a a social services official to

Law provide preventive his in accord- services to a child and plan "upon finding by a ance with the child’s service official that the child will be such placed care or continued foster provided it is unless such services are and that reasonable providing be able believe that such services child will family.” to remain with be returned his specified findings it,of the two in this section as On the face obligation prerequisite a of the social official to services manifestly provide preventive involve the mandated services professional judgment, indeed, exercise of discretion and plaintiffs contrary. plaintiffs’ argue to The do basic not Depart- regulations by the that the issued State contention is specify under which circumstances ment of Social Services obligation nondiscretionary on the an unconditional there is part pre- statutorily make services officials to social findings. scribed pertinent part

Although introductory of the sentences support regulations provide construction, for this some color regulation incontrovertibly study a as a whole makes it possibly intended, have and could not clear that it was nondiscretionary duty part impose intended, to on the been required statutorily of social services officials to make findings under described circumstances. (a), presented, pertinent the issue

18 NYCRR 430.9 provides: provision preventive con- shall be "[T]he services * ** following sidered mandated if one of the standards preventive provision the standard for the of mandated met: placement”. to clients at risk of (c) introductory goes its 430.9 NYCRR provision mandated sentence as follows: "Standard provi- preventive placement. to clients at risk of preventive mandated when services shall be considered sion relationships improve family are essential to such services prevent placement The circum- into foster care. essen- be considered in which services shall stances following”. purposes tial for these are the support phrasing provides apparent Undeniably, for the plaintiffs’ theory de- thereafter the circumstances when provided. present, must be scribed specific thereafter circumstances -What an examination of the interpretation is untenable. that this identified makes clear is in turn. subdivisions Let us consider the relevant (c) (1), 18 NYCRR 430.9 captioned safety "Health of child”, sets forth a circumstance in one which or more chil- dren a caretakers, in been family parents have or subjected by period within 12-month to prior a the date of application services to serious physical by other than accidental injury means, or impairment to or serious risk of serious impairment of their mental or physical, emotional condition as a result of a failure of the parents or caretakers to exercise a minimum care, degree of parents such action "has in resulted a an allegation determination that of or abuse maltreatment is indicated.”

Undeniably, finding a in such abuse would the usual situation call for consideration the social services official of removal the child from the or parent caretaker. But even circumstance, to regard clear, that it is surely and indeed in illustrated original case records one of the plaintiffs, there in many situations which finding made, abuse properly but a professional which assessment the situation finding as of time of such aby social support worker would the conclusion the child should not be parent removed from or caretaker.

Even more it clearly, there apparent many situations a parent which or has imperiled caretaker child, health and safety of the it would make no sense whatever permit to parent the child to remain with the caretaker, or responsible which no social services official could conceivably find "that believe is reasonable to that by providing such services child will be able (Social remain with or be returned to his Services family.” Law 409-a ^[1] [a].) It simply could have been intended impose a nondiscretionary on social officials duty provide preventive in an avoid care effort foster time a every finding abuse and maltreatment of a child parent is made. (c) (2), refusal”, 18 NYCRR 430.9 sets captioned "Parental forth a has parent circumstance which the caretaker refused maintain in the or has expressed home adoption. the intention of surrendering the child for situation, simple In appear fact itself would be a one, leaving judgment little room for discretion whether such an But it cannot follow event has occurred. find it such must a circumstance social worker provision reasonable believe that necessity every would in avoid for foster care such situa- Undoubtedly tion. there be occasional situations which appropriate conclusion, that would be an but it is obvious that Surely, situations, it absurd to so find. most such would be mandating regulation interpreted sensibly as cannot be required provide findings and to the social worker make preventive every parent maintain services who refuses to the child in the home or determined to surrender adoption. paragraph, captioned unavailability”, "Parent The third parents or the child’s describes a circumstance in which (a) hospitalization; caretakers have become unavailable due (c) (d) (b) imprisonment; arrest, death; or detainment or fact that unknown. their whereabouts are again, described would seem

Once the circumstance relatively judgment or as involve little room for discretion presence. it But it is not that was intended its every conceivable regu- parent unavailability described in

situation of nondiscretionary had a lation that duty the social services official preventive to find it reasonable to believe that parent only Suppose is under a would avoid foster care. prison, dead, his whereabouts are life or or that sentence interpretation regulation of the calls unknown. Plaintiffs’ imposes every situation a nondiscre- a declaration that such surely preventive tionary duty provide services, and this is wrong. paragraph, need”, de- fourth headed "Parent is at risk of serious

scribes a circumstance which a child physical, emotional, mental, financial to an harm "due seriously impairs parent which condition of the or caretaker parent’s ability for the child.” or caretaker’s to care apparent circumstance, determination As to it is this official of the fact of the circumstance social professional judgment. us But let involves discretion and described it is clear that assume a situation in which reasonably be inferred circumstance exists. Can every such situation official must find in social services parent’s preventive Assume the will avoid foster care? no there is is such that mental condition emotional and parent possibility can be entrusted reasonable any Can future. . time in the foreseeable the child at urge, plaintiffs regulation conceivably intended, as have been require in that avoid foster care services to situation? paragraph, needs”,

The fifth headed "Child service describes a circumstance in which a special child has need for supervi- sion or services which cannot be met the child’s adequately parents or caretakers without the aid of services. face,

On its paragraph clearly professional involves a circumstance, evaluation as to the existence cannot be construed reasonably ministerial or nondiscre- tionary.

The sixth paragraph, headed "Pregnancy”, describes a cir- cumstance in which pregnant woman is given has birth "[a] and has shown an inability adequate care for her unborn or infant child.” Manifestly, plausible there is no basis for the conclusion that time a woman is every pregnant or has given birth that the social services agency under a nondis- cretionary obligation to conclude that the unborn or infant care, child is at risk of foster and that services are therefore mandated.

Once it is accepted findings that the in specified Social (1) (a) Services Law 409-a involve the exercise of discretion § judgment, it follows that in Special part Term erred that of its order granted that the motion to the intervenors-plain tiffs for a preliminary injunction requiring city the defendants to prepare service plans within to days, and thereafter the services recommended in such In plans. issuing injunction, this in mandamus, effect an Special order of Term substituted its judgment responsible social services officials in matters involving judgment, discretion and and thereby departed from principles govern well-established ing the granting of mandamus.

As treatise, observed in a leading principle is well established admitting "mandamus of no compels action discretion and so clearly required as to be ministerial” merely 775). (Siegel, 577, long-standing principle NY Prac at This Kloster- was squarely reaffirmed in by Appeals the Court of mann v (61 Cuomo supra), 525, primarily NY2d authority plaintiffs issue, relied on in leave no terms mandamus, room for disagreement. regard reasonable to With " (at 539) Appeals Court of reaffirmed '[m]andamus act compel performance lies to of a ministerial purely (Matter where a legal right sought’ there is clear to the relief Scheinman, 16). Legal Aid Soc. v 12, long- 53 NY2d ' appropri- established law is that a mandamus is an "[w]hile duty, ate to enforce the of a ministerial remedy performance compel it it to an act is well settled that will not be awarded to exercise respect may judgment officer ’ discretion” ”. (78 ex rel. v Common Council People Francis Quoting 39), Klostermann Appeals NY2d Court reaffirmed " * * * 540): writ of mandamus also be (supra, '[T]he tribunals, compel to them to judicial addressed subordinate functions, require never them to decide exercise but * * * body A subordinate can be particular manner act, act, in a to which it but not how manner as directed ** * exercise right judgment has the its Where subordi- fact, question of power nate is vested with to determine a body compelled it can though duty judicial, fact, it cannot be directed to mandamus determine clearly however be made particular way, decide in a ” ought the decision to be.’ appear what here, Special at issue issuing preliminary injunction In social services officials responsible Term effect directed particular way, in a judgment exercise their discretion If, to do. which the court was not authorized something fact, denied intervenors-plaintiffs were the result of an erroneous to which were entitled as the statutorily failure services officials to make social would be that set response prescribed findings, appropriate regulation promulgated by Department forth in the State a for a fair explicitly provides in which Social Services denial, reduction, hearing persons aggrieved by to (See, 18 NYCRR 423.4 preventive termination services. [l] If, an hearing, fair [4].) requesting obtaining after a deci- for services receives an unfavorable applicant preventive sion, an article right he means of judicial has a to review petition (Social Services Law 22 § ^[9] [b]). complaint precise is not

Although the intervenors’ request declaratory for theory system-wide underlying services, form or the exact regard preventive relief with to take, apparent it is that such relief was declaratory sys- application that plaintiffs’ appellate presentation regard to relief with declaratory tem-wide statute, to- upon that considered theory was based nondiscretionary duty regulations, imposes a gether with the findings set forth on services officials to make social (1)—a found we have Law 409-a construction Social Services § untenable. be grant- record discloses no other basis for legally viable relief, ing system-wide nor are we able to find declaratory plaintiffs’ presentation appropri- claim that such relief any on ate a different extent which it theory. To the concluded basis of in the presented various studies record that in many defendants have erred individual failing findings cases make under circumstances findings made, which such it should have been is clear that is not system-wide declaratory relief available to address claims judgment separate individual errors cases situations, involving (except factual of which different none for the intervenors-plaintiffs) are before us for our considera- tion, and have not any single which been shown to involve principle applicable defined equally any group families. claim,

We note record no additionally discloses nor claim, basis any for such it was the policy defen- dants to make statutorily required findings, refuse to even them, where the facts were believed to in an justify effort Indeed, limit or expenditures. given avoid reality the central the governing statute provides enriched State reimburse- ment where mandated are it provided, would seem unlikely financial im- considerations have properly affected individual decisions.

Finally, agree Special we unable Term’s conclusion that whatever plan pursuant to Social Services Law 409-e "is in at particular effect time is in the nature of a contract performance city, * * * enforceable a court city has [and that] obligation to deliver at proposes whatever available (134 86-87.) supra, particular 2d, time.” any find Misc We no basis in construction, the statute us which seems to to misconceive meaning clear of the relevant sections. (1) (a) observed,

As 409-a previously Social Services Law § requires "provide preventive social services official ser- vices to a child his in with the child’s and accordance family, this plan required as four hundred nine-e of by section chapter and welfare services the social services district’s four hun- plan approved pursuant submitted and to section chapter”. phrase— dred nine-d of this The critical as "in does not the same accordance mean with”—plainly in- or If the had Legislature "all” "all available services”. services”, or all tended that services” or "all available "all short-range appropriate goals available services identified plan, easy required delivered, it is in the were to be not to see why language embodying intent was not used. that by it difficult reason for the use

Nor is to discern the (1) (a) Legislature § in words Social Services Law 409-a required plan "in with the child’s service accordance chapter”. section four hundred nine-e of with, of, in The and furtherance words used were consistent the fundamental distinction drawn the statute between preventive provided under Social mandated services—services (a) (1) following findings that have Services Law 409-a preventive provided length—and services been discussed at (2). findings As under subdivision we have the absence such provided seen, an enriched reimbursement formula the statute The reason for the mandated services. clear for statutory phrase that the enhanced was make certain provided mandated services reimbursement justification only to such services when would be limited in a that could be them had documented record been Department York of Social Ser- State reviewed New vices. Special of the statute Term’s construction error § 409-e Social Services Law

seems to us further confirmed (3) plan "in consul- of a child’s service which directs review guardian, appropriate, parent where tation with the child’s following preparation ninety days its at least within first goes every The section and at least six months thereafter.” types, provide: dates "Such revisions shall indicate provided actually that have been sources any necessary efficacy services, and evaluation of the of such goals planned What or desirable revisions services.” unmistakably appears it was from this subdivision that Legislature contemplated by in the listed plan might actually provided the time intervals within for review revision. Special likely

Moreover, construc- think it Term’s we precisely consequences would have almost tion opposite been a child has that were intended. Where those being surely seems risk of foster care identified as preferable, prac- professional with sound in accordance identify all officials tice, social services concerned permit existing maximum situation relevant changing responding quickly flexibility circumstances being apprehensive every without identified service would required by provided. be law to be The almost certain conse- quence Special construction, one Term’s and Legislature surely intend, did not would be to induce social narrowly officials to limit the services identified original plan obligated child’s service lest experience changing services that circumstances unnecessary inappropriate. indicate to be or dissenting opinion opens its discussion of the issues that agrees divide the court with the comment the writer majority’s opinion, including finding "with much of the preparation plan provi- of the child service and the preventive mandatory sion of accordance with such plan involve the exercise of discretion”. In this candid obser- dissenting opinion although untenable, vation the finds opinion legal explicitly, theory does not so state on the plaintiffs sought, secured, basis of which the an order of requiring prepa- mandamus as to the intervenor families the support plans, provision ration of child and the of services plans, identified in such and which is also central to the claim system-wide declaratory regard preventive relief with Nonetheless, services. parts the dissenters would affirm the relevant appealed justifying from, of the order this conclusion complex analysis, parts the basis of a the different of which easy understand, are not to follow or to but which effect discretionary obliterates the distinction between and ministe- rial acts that is central to the law of mandamus. dissenting opinion provision

Thus, the contends that the preventive discretionary services "are but nondiscretionary duty means to the fulfillment of SSC’s protect suffering children who are believed to be from abuse neglect”. or immediately apparent upon analysis

What becomes is that this formulation reaches an untenable conclusion on the basis First, two fundamental errors. as is obvious from an exami- preventive nation of the Child Welfare Reform Act of purpose protecting services are not authorized for the abused or maltreated children. Under Social Services Law "supportive § 409 services are reha- defined as * * * provided bilitative services their fami- to children and purpose averting impairment disruption lies for the of: family placement of a which will or could result in the of a Undoubtedly child in foster care”. it will often be the case parent that abuse or will maltreatment of children danger impairment justify the that there is conclusion being disruption could the child of a result placed care, in which event foster (1) (a) authorized, under Services Law 409-a mandated Social findings discretionary statutory made, if under the are and (2) findings. statutory of But section 409-a in the absence such indisputably it only authorized is clear that services are being avoiding purpose of a child for the of the risk placed purpose safeguarding care, in foster not for the of safeguarding of or maltreated children. The abused abused or clearly by to maltreated children was intended be advanced by protective the services authorized the and rehabilitative of 1973. Child Protective Services Act by regulations promulgated study the York As a of the New preven- Department clear, of Social Services makes the State disruption prevent families and to of tive services authorized protective placement care, and the the of children foster safeguarding the of abused and mal- services authorized for respects quite many children, the same or treated similar, arising principal separate, from the if the differences sought purposes related, under the stat- to be achieved two utes.

Assuming, however, services were be purpose safeguarding of as authorized for the considered wrong clearly children, it court maltreated a abused or directing a to issue an order of mandamus social provide a in the of discretion official to service which exercise theory on the the official found be unwarranted discretionary simply the fulfillment of a service is a means to effectively nondiscretionary duty. notion eliminates This discretionary ministerial acts. More- distinction between over, and legal reality seriously as distorts the to describe duty protect nondiscretionary children believed suffering from abuse. makes

As an examination of the relevant section protective aspects duty clear, some of child duty nondiscretionary, which, com- workers are one of receiving report investigations a of mence within hours specifically maltreatment, raised or child abuse was an issue appeal. many However, made of the critical decisions on by discharge protective duties of their service workers child judgment. clearly Is involve exercise discretion report supporting abuse or child there credible evidence pending require action Do the circumstances maltreatment? report supported determination as to whether abuse is evidence, so, credible and if Assuming what action? evidence, report is confirmed credible should the parent parents, protective be removed from the should so, if provided, and rehabilitative services be which ser- It vices? no means that a confirmation of always fact validity report require of a a child will that either be removed or that provided. clearly services be All of these are discretion, involving matters exercise of judgment under established rules courts by way mandamus require social worker to take one or another action which that exer- unjustified worker has concluded was cise discretion and judgment.

Nor does it seem to us helpful understanding assert legal "duty issues raised to investi- timely gate all reports, probe evidence of neglect credible defined, legally provide and to whatever services are necessary safeguard investigation thereafter, to during the child is not discretionary.” Manifestly, services caseworkers duty have a to investi- nondiscretionary timely all gate reports of abuse maltreatment. obvious,

It seems equally although contrary view central to dissenting much of the that a claim that in opinion, a particular case a worker did not for adequately "probe neglect”, credible evidence in and that the worker failed the exercise of provide discretion and to judgment services alleged to necessary, be does not manifestly convert these discretionary duties into nondiscretionary ministerial acts.

Although an evaluation of the of the determina- correctness tions the social regard services workers to the needs plaintiff for preventive families is not an appro- services priate appeal, dissenting issue on in the comment on opinion that as a subject requires something to be said matter of larger group fairness to those workers to the social services workers of whom to be they may thought representative. What of the entire objective evaluation record discloses is in the cases the judgment almost all of of the social services workers that children were not at risk to foster care was of the facts clearly light correct known them, and that of the part for most the correctness facts by any subsequently determinations was not affected developed.

Nor do justifies we think the record the observation that response social services workers a whole the of the compe- plaintiffs lacking family of the was undoubted needs appear Undoubtedly what to be tence. the record discloses lapses. whole, the re- as a omissions and When considered problems sponse workers of the several social services suggested presented in far than is was more substantial original plaintiff dissenting opinion. families, to two of the As appropriate the record establishes prior to the com- were fact authorized situations although the for lawsuit, direction such mencement of this put that time. As to almost had not been into effect at parents plaintiffs, record is clear that the all of the request prior any time the commencement did not a services, the of which set forth as lawsuit those denial was ground action, not the record does for relief in this part for the social services workers establish the most case, In and that of those needs. one should have been aware family, parent intervening families, the Lee one of the two response inquiries emphatically existence denied might providing justified the of such conditions that have claiming signed very day services, and she the affidavit request respond services, denied a failure to response to her specific inquiry by services worker that social any she had need for services. suggest

In the above observations we course do only obligated employees social services requested. obligation pro- Obviously, they have an where is established vide services where need such services fact that satisfaction the social services worker. The request although services, did the denial of families not such requests alleged plaintiffs’ affidavits, for such services was surely in which is relevant a fair evaluation of the manner discharged obligations. social services workers report say inquiry

Nor it into the is accurate to that the relating family Lee limited abuse was inquiry of that the mother. The record is clear social questioned only mother, also the services worker not but alleged family boyfriend oldest child in the whose and the complaint In conduct was to the of child abuse. addi- central tion, basis of the social services worker determined investigation personal was no and that there observation report that the substance the claim the of abuse lacking clothing was sufficient food or for the children. appears problem clearly of most of What is that central home, these permanent families was their lack of a although the social services workers are authorized to assist in securing homes, so, them permanent fact did it is clear that they had neither nor authority ability provide such homes.

This is not to say the record does not inadequa- disclose failures, cies and nor it does not disclose room for considerable improvement, but it is not fair to this group callous, workers to present incompetent, them as uniformly important insensitive to their obligations.

In addition to confirming from, the order appealed our dissenting colleagues have "upon searching concluded * * * record appellants have failed to with the comply mandatory directives of Social Services Law and 424 in §§ cases, all due to an erroneous policy promulgated by defen- dant Commissioner of the New York State Department Social Services”. In particular, it is urged regulation that a promulgated by the New Department York State of Social Services, (b) (4) (x), NYCRR 432.2 impermissibly limits the discretionary power of the social services workers under Social (2) Services Law 409-a to provide preventive services. On the basis of this it analysis, urged that a declaratory judgment should be entered striking down that section as arbitrary invalid, and giving detailed instructions agen- several cies as to how they should discharge their functions.

In this aspect the dissenting opinion colleagues our raise and determine an issue presented not by the notice of appeal case, in this grant to plaintiffs, did cross-appeal who from Special order, Term’s requested relief not in the motion that gave rise order, to that on the theory basis of a never presented by plaintiffs.

From a study of the complaint and complaint, amended indisputable these pleadings never identified the regula- tion in question invalid, as arbitrary or or suggested that regulation in any way impacted on the adversely plaintiff upon families or other families alleged similarly to have been situated. An examination of the factual intro- submissions duced by, of, and on behalf the family plaintiffs, discloses no claim that deprived were of services because of the regulation, nor suggestion of any factual basis for the conclusion that the regulation question affected in the slightest degree Indeed, the services which received. they as to two of the plaintiff families who subject were never the of reports subject abuse, of as to one which was the of child and reports case, to in this such at times not relevant the issues regulation apparent. irrelevancy to the three the of the is As report, is was a the record families which there such regulation alleged way the to be invalid no conclusive that response to the officials affected the of social services needs.

By any an it would behavior standard be unusual appellate pre- never court to reach and determine an issue providing litigation, in a so sented and do without parties adversely opportunity heard on a for the affected part question the no of had reason believe was 837.) (See, litigation. Collucci, this In Collucci v NY2d govern- suggested departure case, from the normal rules the ing appellate singularly is unwarranted. courts obviously highly professional a result of

This lawsuit is outstanding cooperative involving ability, lawyers effort of person- respected homeless, and the trained advocates for experience large major organizations nel of with and extensive addressing problems of and maltreated children abused easy to in their It not believe that and their families. experience families the extensive with such children and their organizational plaintiffs personnel not of would skilled fact, observed, have deprived if it the families had been were regulation, an invalid needed services because jeopardy, put in if not of children lives had been regulation. easy lost, a result of that Nor is fact response any believe that if of the several studies problems government agencies had children of abused pernicious regulation disclosed effect of the discovered dissenting colleagues, challenge appeal by our regulation part would have been this lawsuit. regulation part of the case

The reason that was not apparent presented by plaintiffs’ readily skilled counsel regulation together with the from an examination of the regulations regula- body entire statutes implement. tions were intended regulation group forth the is one of which sets

responsibilities powers child service. receiving responsibility for That vested the sole service is reports entity investigating abuse, and is the sole and responsible necessary coordinating providing well-being preserve safeguard and stabi- the child’s and to regulation particular appropriate. family in lize life when defining under the circumstances issue was concerned with exclusively protective caseworkers, autho- which child protective empowered provide and rehabilitative rized and subject reports of abuse the services to children who were preven- provide permitted maltreatment, should also be by normally other social furnished tive services of the kind disrup- family purpose preventing services workers for the protective regulation workers tion. The states that child only provide preventive permitted services where should be eligible the services and where for mandated was providing protective directly other service caseworker was subjects maltreat- of indicated abuse and/or services to the acknowledges, nothing dissenting opinion reports. ment As the any purported diminish, in diminished, in this section way power existing discretionary of other social provide preventive workers to services. colleagues regulation

Manifestly, which our would presentation arbitrary, any in the strike down as absence by parties us, is concerned with the the issue before autho- allocation of functions between social services workers provide preven- rized in their the normal course of duties protective tive caseworkers who have services and child investigating reports responsibility sole maltreatment, for of child abuse providing responsibility and the sole plenitude protective in the broad and rehabilitative services aspect discharge this of their duties. The central thesis of dissenting easy opinion ways that, to understand support record, in this and for which no shred of exists power protective limitation on the caseworkers of child impairs provide preventive way nonmandated services in some discharge significantly ability their their functions. power of child We are told that this limitation on the protective provide preventive services, services caseworkers to although they power provide rehabilitative have broad protective part duplicative services, respects probably extensive, im- somehow and in some pedes more 'swiftly gather ability "to evidence any support competently’ record this ”. In the absence of impacted plaintiff adversely any families were suggestion any limitation, the absence subject has the limitation on the that this sweeping extensive literature consequences it, drawn conclusion attributed to colleagues very indeed. foundation tenuous our rests on professional disagreement presented is a between

What is colleagues Department York State of Social our and the New proper allocation of functions under Services as concerned, social statutes which we are between in the of their duties to workers authorized course In a caseworkers. services and fairly presented issue, facts in which the lawsuit provided support reached color of conclusion some Department dissenters, and in New York State which the opportunity respond, to the of Social issue Services had might regulation appropri- the well reasonableness judicial appropriate no ate for consideration. That issue has place in this lawsuit. legal reaching conclusions, not

In the we do above-described suggest provision preven- the intend to that all is well with qualified profes- tive includes studies services. record part sponsored and authorized sionals—studies for the most agencies—in it found one or more of the defendant which was by the defen- that have been deficiencies statutory obligations several there severe discharging provide in to dants their preventive services. particular, city

In it has been found the defendants important provide preven- frequently core have failed to two in were tive services circumstances in which such services day-care In addi- indicated—homemaker services and services. notwithstanding many tion, children, it has been found placed concerned, the been statute with which we have opinion conducting where, the foster care in the of those might studies, have avoided that result. Assuming the the essential correctness of conclusions studies, de- reached in the the conditions several and changed significantly scribed in them since have conducted, that a radical studies were would seem clear improvement response defendants of the several obligations provide a services is needed large urgent public importance. matter of Accordingly, Supreme Court, York order New (Edward J.), County August Lehner, 7, 1986, H. entered granted thereupon defendants’ motion to renew and adhered original May 27, 1986, which, to the court’s order inter dated (1) granted intervenors-plaintiffs alia, motion pre- injunction requiring city preliminary defendants provide pare plans days, service within and thereafter (2) therein; granted the motion of all recommended organizational re- plaintiffs preliminary injunction for a quiring investigations defendants to commence city within 24 reports suspected neglect abuse or hours (3) receipt of such reports; city denied defendants’ law, modified, judgment motion for on the summary should be costs, for a intervenors-plaintiffs without the motion of deny pre- preliminary injunction requiring city defendants pare plans within all services days plans; recommended set findings such to declare (a) (1) forth Social Law Services 409-a involve the exercise of discretion judgment; to declare that a child’s service plan prepared in accordance with Social Services 409-e Law § does not constitute contract as such enforceable court; and to nonjusticiable dismiss otherwise plaintiffs’ claim for system-wide regard relief with declaratory preven- services, tive and otherwise affirmed.

Rosenberger, (dissenting). J. five or six a child "Every days dies New York City neglect. because of abuse or parental Some die because alone. they have been left Some are victims of a parent’s psychotic delusions. Some had have illnesses which been in neglected. have Some are killed while the hands of incompetent Some baby sitters. starve to death. Some die because of been safety hazards which should have corrected. Some are to beaten death.”

This is grim far reality faced too children by many living today in of City according Report New York to the of the Public by Child Committee Fatality Review headed Committee). (the former Family Judge Court Dembitz Nanette This expert Committee in appointed by was 1985 January De- defendant-appellant City Commissioner of the New York partment of Social to provide Services to and an outside study of of appraisal performance Department of city’s (DSS) and, Social Services for Special Services particularly, (SSC), Children for child agency responsible services fami- and services for children and their City. lies New York The reviewed 89 Committee cases which ne- parental children had died of suspected abuse 1985, glect during "detecting the purpose any systematic deficiencies in child- SSC as well as other involved agencies report care.” The findings published Committee’s in a were 23, 1986, dated after December a little than one year more report this action was of the Commit- Although instituted. 180 judicial part herein, of its I take notice

tee the record findings directly by issues raised are relevant plaintiffs-intervenors-re- original plaintiffs-respondents by spondents.1 brought young action, of mothers

This a number destitute, homeless children who find themselves providing not-for-profit organizations as- services and several places homeless, this court and the performance before sistance children carrying out its record of SSC’s 4, Law, 6, title Preventive Services article duties under Social (§ seq., Their Families et Services Children and 1979) 6, Child Act of and article title Child Welfare Reform (§ seq., Services the Child Protective Protective Services et 1973). ofAct allegations running through thread common respondents are need

individual prevent being placed care, in foster but their children failed or refused SSC has Law and as the Social Services to them mandated allege respondents organizational regulations thereunder. The cases, SSC has failed in a substantial number of reports investigations neglect within 24 commence abuse leaving required by hours, They law, 6,000 children at risk. over investigations timely allege further that even when appropriate commenced, to the SSC fails to offer investigation, during the also as their families children and protection required; provide any children; real fails rudimentary carry elements out "even the most and fails investigation.” day protection failures, the 90 These according respondents, Social Ser- violate New York State defendants-appel- Law Federal under which vices laws pro- and child welfare lants are reimbursed for foster care (Social grams seq.], Security IV- § [42 Act IV-E USC et tits seq.]). B [42 USC 620 et opinion, majority’s agree includ- I much of the

While with plan ing finding preparation service the the provision mandatory preventive in accor- services and the acknowledged ac- findings publicly the were 1. The Committee Services, whose defendant-appellant, cepted by Commissioner of Social study in its Fatality similar conclusions Internal Review Panel had reached neglect-related of 42 such deaths deaths and of 35 of 1985 abuse- 1986, previously SSC. known to in all them in families occurred which Brezenoff, (See, 1987, Stanley 29, Grinker to from J. mem of Jan. William Panel.) Fatality of the HRA Internal Review re: Activities

181 plan discretion, dance with such I involve the exercise of following analysis conclude, Social nevertheless regulations promulgated thereunder, Services and the Law discretionary that these acts are means to the fulfillment but nondiscretionary duty protect of SSC’s to are children who suffering neglect believed to be from abuse or and to safeguard necessary whatever services are to such children. grant injunctive respon- While I affirm the relief would to dents, I that result reach different route from the one consequently, and, taken the court below I frame the would finding differently. agree order I do not below that plan contract, the 409-e service is in the nature of a and I finding unnecessary consider this respondents decision to award declaratory injunctive sought. I find relief mandatory clear, directives of the Social Law Services sufficient to warrant such relief. process,

The Social Services Law establishes a which may compel appellants implement follow, court and to important statutory order to effectuate the aims of the Child Welfare Reform Act and Child Protective Services Act— protect suffering which are: to neglect; children who abuse or safeguard well-being, their health either appropriate, home or care; while foster and to make reason- family able efforts to rehabilitate the so the children safely remain in the home or be returned as soon as possible.

The fact that the social services officials must make discre- tionary stages protec- determinations at various of the child investigation formulating plan tive a rehabilitative family does not mean that have the discretion ignore statutory process make determination; no in- bring tended information to their attention which would require (People them act as directed law ex rel. Francis v approval Council, Common NY [1879], cited with [1984]). Cuomo, Klostermann v 539-540 What NY2d perceive majority man- fails to is the interrelation of the datory process investigatory Pro- under the Child established findings discretionary preliminary tective Services Act and the to a determination that are mandated. protective investigation is intended to reveal information about the enable social services will officials foster to determine whether a child is at risk of placement elimi- and whether there are which will investigation Indeed, nate that risk. establishing what are the SSC for means available to the sole legal grounds are the home and whether there conditions in removing the to foster care. for competent protective investi- fails to conduct If the service neglect, suspected reports gations abuse or into all inevitably required by left in law, there will be children then well-being endangered, health and homes where their protect any them or to rehabilitate services to without family—in words, which are mandated other without thorough, competent investigations by law. Without any simply empirical protective service, there no basis upon discretionary in is called to make decisions SSC exercising statutory mandate. its judgment summary and in their below

In their motion complied appeal, appellants have claim that briefs regulations, system-wide basis on a the relevant law and with respondents; dealings in their individual and complaint The affidavit and should be dismissed. unfounded Deputy support from the Administrator of the motion analysis statutory appellants’ charge of the of SSC sets forth protective regulatory for the framework supporting Director of Court affidavits SSC’s services. steps taken the social services officials Services detail the plaintiif problems original parties response and the intervenors. reviewing families, I intervenor

In the case records for the support they fully the children find that the conclusion that placement. As to were at risk foster Williams family, questions adequacy the Lee raises about the record protective investigation SSC based its on which neglect report suspected was un- determination reviewing upon searching Moreover, founded. the record appellants comply law, with the I find failed to have mandatory §§ 423 and 424 directives of Social Services Law policy promulgated cases, defen- all due an erroneous Department of of the New York State dant Commissioner party appeal. Services who is not a to this Social grant position that the The State defendants have taken the inappropriate injunctive against relief the State would be regulatory authority nor because has neither the delegated perform to the local child the duties However, Commissioner services. defendant regulations guide promulgates the these local services performance in the their duties govern of and which (Social to agencies reimbursement funds the local Services 427). 409-b, regulations impede Law Inasmuch as these §§ duties, local service in out its carrying statutory specified additional herein both necessary proper. relief Therefore, I respondents conclude that are also entitled to certain not declaratory injunctive relief specifically below, sought specified as herein.

The strong reasoning takes both to the majority exception underlying that conclusion additional relief is warranted my which, said, deciding and to the issue propriety was not parties addressed either specifically below on must, I appeal. however, respectfully disagree my with col- leagues above, points. both these As noted appellants argued interpretation their of the Social Services and the Law regulations length, seeking judgment summary their motion reargument partic- cited the They below. also regulation ular which I find to be to certain contrary provisions, although not to appellants offending did refer (x) (18 clause [x]). NYCRR 432.2 It should also be noted [b] [4] respondents argued, in opposition appellants’ motion below, that legal there was a bona fide as to issue whether individual respondents were entitled to receive mandated services and that "a definitive interpretation of the law is needed move defendants these services.” The court, lower without explicitly addressing appellants’ analysis law, and, effect, denied their granted motion sum- mary judgment respondents. Appellants challenge now ruling. are, therefore, determine,

We upon called as a matter of law, what are appellants’ duties under the Social Services Law and whether they have acted in statu- accordance tory so, mandate. In aspects order to do must all we review law, the relevant not those merely portions cited parties. review, After such it appear any should "that party other than the moving party summary judg- is entitled ato court, ment” Court, then Supreme this as division of grant "may judgment such a cross- necessity without (CPLR (Merritt motion” 3212 [b]) Hill Vine- appeal or a cross yards Windy Hgts. v Vineyard, [1984]). 61 NY2d 110-111

Appellants maintain cases were thor- respondents’ oughly promptly investigated this action was com- before for, menced and that no nor investigations revealed need any statutory requested preventive entitlement ser- provided preventive Nevertheless, services were vices. respondents they action. These after instituted this individual plaintiff. parties However, two individuals then withdrew similarly situated, families, Williams, who are other Lee and Despite granted has that SSC leave intervene. fact were only recently in these families determined that the children placement, and therefore were not at risk foster mandated, services were provided families to the intervenor after were likewise join action. moved respon- allegations in the of the individual affidavits pre- substantially with the version events

dents conflict Director of Court in the affidavits of SSC’s Services. sented picture presented fully credited, the Even if SSC’s recitation response appellants’ does little to reassure these cases competently. performing that no that SSC claims are suggested, any nor determi- official has ever has social services made, the Williams children are at risk nation been placement. Contrary the reached the conclusion foster majority, I which the officials find that the facts social services plainly regarding family knew should have known so danger to the children’s health and well- indicated imminent being placement, and, therefore, a risk of foster SSC’s that, least, at amounts to a declaration in this case assertion appellants inadequately performed have duties. September family 1985,

The Williams homeless in became husband, Williams, her Mrs. who had been deserted after apartment. Mrs. Wil- her small was forced leave sister’s pregnant, liams, and her five who was then months several slept days. hallway 1985, In October children in a for several family Emergency Unit to was sent Assistance Bronx, Shelter in The a barracks which Roberto Clemente single people in a room. several hundred accommodates immediately rejected family shelter, however, because family youngest Thereafter, was had tuberculosis. housing temporary provided emergency in the Marti- nique they occupy Hotel,2 Mrs. Williams where one room. Among findings the Dembitz Committee was the conclusion 2. special needs temporarily hotels have housed welfare families which support poverty disruption network of is the of whatever because "[a]dded neighborhood” (Report family had in its old and resources Committee, 74). investigated children deaths were Seven of the whose usually states that the room is cold her son with tubercu- "coughs losis a lot and feels sick because of cold.” (CIS) pre- The Crisis Intervention Service caseworker who pared family 23, 1985, the Williams intake record on October youngest taking noted that child was medication for his taking prescription tuberculosis, drug son eldest was also taking asthma, and Mrs. was Williams antibiotics kidney However, infection. the CIS caseworker who inter- family Martinique 30, Hotel, viewed the in the October "Family indicated on their Service form that Assessment” family there were "no” members Williams under medi- cal care. He also left the form blank where it calls for a description "any problems family have, health members * * * including any prescribed”. surprisingly, medication Not any the caseworker concluded fit did not the criteria for a health referral. January keep appoint

In Mrs. Williams failed to ment with her social worker and her whereabouts un were days known until four later when the social worker contacted Mrs. Williams’ sister who said that the children left had been January 17, with her. On Mrs. had had Williams herself Hospital, psychiatric emergency admitted to Bellevue as a patient, because she feared she hurt would either herself or hospital, the children. After she was released from the sister informed her that she would not her again agree to take the 3 go children and would have to to foster care next time. February taking subway On while the her five Martinique Emergency children from the Hotel to Assis- Brooklyn, tance Unit Mrs. labor and Williams went into hospital. taken, ambulance, had to be sixth child Her pointedly replace- lived in welfare hotels. The Committee recommended the housing growing ment of "welfare hotels” number of with decent for the Although acknowledged New York’s homeless families it with children. is solution, long-term that awas the Committee advocated that while the exist, "preventive protective supplied welfare hotels services must dangers special meet the who children live there.” Hospital surprising report It 3. is not that found Bellevue SSC no from files, indicating might in its that children be at risk of abuse Williams neglect. hospitals requiring or The Dembitz Committee found that the law report suspected neglect safeguard” abuse or was because "an insufficient professionals always the mental health not exis- aware child’s 45-46.) however, Committee, surprising, (Report tence. of is What is workers, five the DSS social who knew that the mother these danger cope, to the ability children of her saw no had reached limits children. kept February him infection which on with an was bom days hospital He died 40 later first of his life. week Martinique in the Hotel. failings, only of the not critical

This record indicates several neglected vital health to obtain social services worker who information, management. It raises seri- of the DSS case but questions performance: appellants’ a was there ous about family; comprehensive kept it the Williams was ever file why report systematically a reviewed; so, if did no one make regarding protective risk to the the obvious service people For, if in the it is evident health of these children? danger contracting tuber- Roberto Clemente Shelter were siblings, sharing boy, one his four Williams culosis danger. Martinique Hotel, were also him in the room with report statutory duty to All workers have a social services (Social 413), suspected neglect Law abuse Services cases of pose expected which an alert to situations and are to be well-being danger As to the health and children. imminent discussed, neglect report suspected it abuse infra, investigate prompts protective which service ultimately, which, enables SSC to make say determination placement, or not the child is at risk foster whether which would eliminate that risk— whether there are services failure, initio, i.e., Thus, services. ab mandated report suspected neglect of DSS social workers to a case provide preventive failure to lead to the are mandated law. family, report made to the

In the was case of the Lee protective alleging the Lee children were public giving properly her fed or clothed because Mrs. Lee was money boyfriend. ser- assistance to her While the hours, vice worker made contact with the within nothing required, "investigation” more than consisted allegations. with Mrs. Lee who denied the interview emphasized children, not the It should be parents, Pro- who beneficiaries of the Child are the intended In the Reform Act. tective Services Act and many Child Welfare investigation may particularly instances, the where parents, the uncover evidence of criminal conduct parents’ may the child. Conse- interests be adverse to those of parental quently, solely SSC’s denials reliance failing. allegations must as a The Dembitz Committee be seen by caseworkers on their also criticized the "excessive reliance”

187 impressions parent own of a as "concerned” about the child. 28.) Committee, (Report of the urged at The Committee improve SSC supervision help its workers "understand families, limits their knowledge about and the need to assess on an ongoing cases rarely basis. Assessment can be 29.) completed in meeting.” (Report Committee, one After the Lee family intervened this action and SSC them, agreed to provide services it was discovered that younger children had not attending been school because they lacked proper immunizations and had other health-related problems. Ongoing contacts revealed conflict family between Mrs. Lee and teen-age daughter her who picked was up by police Pennsylvania Station with on her bruises face from where her mother had punched problem her. This was daughter resolved being sent to live with relatives in the south. The was family eventually given referrals services, day-care health housing assistance. Williams,

Mrs. Mrs. Lee the organizational respondents herein claim that are they entitled to system-wide declaratory relief. injunctive There can no irrepa- be doubt as rable harm which respondents if agencies will suffer charged with providing and preventive neglect However, duties. before the court may exercise its formidable powers, "no matter how equity emo- tionally compelling” be, respondents the claims re- (Tucker quired v to show a likelihood of success on the merits Toia, 322, 54 AD2d 326 1976]). Dept remedy [4th seek, mandamus, the nature of depends on the character duty respondents compel would have the court (Klostermann Cuomo, v appellants perform 525, 61 NY2d 539-540, supra). The character of that found duty is be through examination the Social Law. Services Child Protective Services and Nonmandated Preventive Services indeed,

It is the "the very strong public of this State policy state’s first families—to obligation” children destitute help prevent break-up "with its or to (Social [3]; it” [iii]; reunite Services Law 384-b § [1] [a] see, Matter Star A., 55 NY2d ^[1982] [Meyer, J., Yet, balanced dissenting]). carefully must policy patriae, parens safeguard against the State’s duty, (See, Finlay Finlay, v well-being health and of children. 188 Santosky also, 429, J.]; v [1925] [Cardozo,

NY 433-434 see [1982].) Kramer, 745, 6 455 766-767 Article of the Social US particular, Law, 4 6 of that article in and titles Services and through complex regulatory establish the scheme attempts policy while, this same State to effect social sovereign. fulfilling duty time, its moral 6, Law, is to article title aim of Social Services One investigation suspected encourage reporting of child abuse and establishing, county, "a child each and maltreatment reports swiftly capable investigating protective such service of 411). (Social pro- competently” § Law The local Services and providing protection capable of for service must also be tective further or maltreatment or children "from abuse the child par- for the child or children and and rehabilitative 411). (§ protective every end, child To local ents involved” qualifica- of "a sufficient staff sufficient service must maintain (Social purposes of this Services Law fulfill the title” tions to competent Adequate [1]). staff are essential § 423 numbers statutory protective the child service’s to the fulfillment of duty protective is "the sole the local child because investigating, responsible receiving public agency” or for reports” suspected arranging investigation of, "all (§ [1]). child abuse or maltreatment specific time frame Law out a The Social Services sets reports requirements investigation particularized for the 424). (Social A § State- or Services Law abuse maltreatment register 6 to receive under title wide central was created persons suspected reports abuse or maltreatment (see, report statutory duty Social Ser- a such cases under 413) making reports, persons § and from other such vices Law anonymously. openly either necessary emphasize of those under

It the critical role neglect. suspected statutory duty report a cases abuse protecting reports Without mechanisms such rehabilitating idle families remain children and persons report by a The willful failure to make ineffective. required legally A class misdemeanor do so 420). (Social liability give § Law rise to civil as well Services required to above, workers are all social services As noted suspect report reasonable cause to cases "when have professional coming or official them in their a capacity before (Social Services or maltreated child” is an abused 413). § Law screening, register relays

After initial the central re- ports protective investigation to the local child service for (Social 422). Upon receipt report, § Services Law such appropriate child tigation service must commence an inves- (Social twenty-four

"within hours” Services Law [6]). protective investigation The service must include "an evaluation of the environment of child named in the report any other children in the same home” and a determination of the risk to the existing if children remain in the (§ [6]). home environment. 424 If an initial assessment presents danger indicates that this environment an imminent protec- children, the life or health of the child or may home, tive service caseworker remove them from the provisions (§ Family accordance with the of the Court Act 424 1024). Family see, [8]; § Ct Act days receiving report suspected

Seven after abuse or protective maltreatment, the local child service must forward preliminary report investigation written of its initial to the register. preliminary report State central The must an include summary evaluation of the home environment and a of ac- (Social contemplated. [3].) tions taken or § Services 424 Law periodically follow-up reports Thereafter, must be sent register central until a final determination is made. nature,

The caseworker must also assess "the extent and any report suspected cause of condition enumerated” in the (Social [6]) abuse or § maltreatment Services 424 Law and the days service has 90 within which to determine whether report "indicated”—i.e., is unfounded or that "some credible (Social alleged evidence abuse or maltreatment exists” [6]). protective § Services § Law 424 [7]; [5], A service investigation complete statutory is not unless these distinct requirements have been met. report

While the determination or un- that a is indicated requires founded is of discretion, a matter the law investigation on which that be con- determination based "swiftly competently.” ducted found, The court below agree, appellants investiga- timely I have not commenced required. appellants cases, tions in all I as further find that competent investigations have not conducted in all cases due policy promulgated by to an erroneous Commis- defendant Department sioner of the New York State of Social Services. adequacy protective investigation The of the must be judged light First and functions serves. agency public protective foremost, service is the sole investigation instigate into or to authorized to conduct through purposes establishing state, its home for "when against parent family court, the wishes of intervene (Family properly met.” behalf of a child so that his needs are [11].) 1011, 1034; Law 424 §§ Ct Act Social Services investigation § under Services Law commenced Social proceedings provides grounds for initiation of child legal Family only Act, for remov- avenue under the ing Court minimum, therefore, At a the child to foster care. investigation there is credible evi- must determine whether judicial Fam- dence, ily intervention sufficient warrant prima maltreatment, Court—i.e., of abuse or facie evidence legally defined. in Social Ser- of abuse and maltreatment The definitions incorporate by the definitions of § 412 reference vices Law neglect Family 1012 of the Court found in section abuse and special given neglect The definition of is of concern Act. expert, according presented because, to one it herein and facts (58% reported type report predominant of of "has been 1984) deprivation of has been cases in necessities (55% major maltreated of identified of form maltreatment 1984) reporting history statistics.” children in (McCabe, over the of Neglect: View, in Child Abuse and Child A Research 1986].)4 Neglect, editors, [Cohen, at 23 McCabe and Weiss neglect category which is of Maltreatment subsumes Family § Act 1012: defined as follows Court "(f) age years 'Neglected of child’ a child less than means "(i) physical, been or condition has whose mental emotional becoming danger impaired impaired as a or is in of imminent person legally parent or other result his failure of degree responsible care for his care a minimum to exercise "(A) clothing, adequate supplying food, the child with * * * * * * though care, or medical shelter or education financially or other reasonable to do so or able financial offered (Emphasis supplied.) do means to so”. definition, child or children the fact that the Under privation not, itself, sufficient is of material risk because support financially neglect. parent finding is Where clothing, adequate shelter, or medical food, unable to make Abuse of the Child Sexual Maryann the Director 4. Dr. was McCabe until 1986. Department of Services Project Social for the New York State providing available, care reasonable meXns for these necessi- parent. ties must be offered report neglect

The determination of whether a of child is unfounded or indicated indigent parent’s turn must on an of the assessment competence providing

intent and parent given necessities of life to the child once the has been parental competence reasonable assistance. Evaluation of meeting the because, child’s is needs essential however well parent may good enough be, intentioned the intentions are not (Matter well-being to insure a Franz, child’s Dept 1977]). 55 AD2d protective purpose [2d 426-427 Indeed, the investigation service tois differentiate those cases where competent parent simply otherwise is overwhelmed circum- being stances outside of his her control—such as homeless City’s housing in the midst of New York crisis—from those parent incompetent. irremediably cases where investigation Where, based on the into the home environ- "any suffering ment, [is] believed to abuse pursue maltreatment” the child must investigation by offering parent reasonable means to (Social problem emphasis resolve the § 424 [9]; Services Law supplied).5 Undoubtedly, there be instances where the degree posed danger bespeaks definitively to the child parental competence, obviating thereby lack of the need probe any (Family see, further Ct Act 1046 [a] [ii]; Matter of Shelley Dept 1981]). K., However, Renea [3d AD2d 1073 equally many, most, certain if cases cause parental ambiguous. failure will be The offer of reasonable danger therefore, means to is, eliminate the to the child investigation suspected neglect. essential to the into Without protective investigation inadequate it, the must be deemed because has failed to seek evidence which would establish necessary neglect, legally each of the defined. elements as investigation by protective The the child is not service complete ac- once reasonable been offered and means have parent 5. the Should the refuse the means to alleviate reasonable offered distress, neglect protective child’s the that refusal is evidence may compel parent accept the Family service seek Court to a order to the (Social [iv]; [10]; services offered. 424 18 NYCRR 432.2 Services Law § [b] [4] see, 1054.) neglecting Family 1027, persists the parent Ct the Act If §§ help agencies despite diligent child’s needs the service efforts social child, ultimately parent provide terminate Family may the for the Court 1031; parental rights (Family or Law 384- his her Act Social Services § Ct § b; also, W., [1984]). see NY2d 142-143 Matter Star Leslie parent’s performance cepted. must monitor the The service eliminating are effective in determine whether those means merely palliating danger For, child, it. or suspected investigating reports of child abuse or addition to duty protective maltreatment, also has a "to the child service prevent to children and to further abuses or maltreatment provision provide arrange coordinate, or and monitor the for necessary safeguard the child’s and ensure those services (Social [emphasis supplied]). well-being” § 423 Services Law again imperiled withdrawal If the child would be investiga- during given parent or services tion, assistance protective must continue to then the service without time be withdrawn them until such necessary endangering are to safe- the child. Services which guard which the chil- in the home and without the children placement are mandated under dren would be at risk foster (1) provided with the in accordance section 409-a and must be plan, required 409-e of the Social under section child service (See, infra.) discussion, Services Law. agree majority’s that a child

I cannot with the assertion neglect subject an indicated abuse or who has been the (one neglect report is or evidence of abuse in which credible protective present) may or home with no be left prevent or recurrence of the abuse services to neglect. clearly contrary directive of This would ability question Moreover, I SSC’s Social Services Law 423. neglect report is that an indicated of abuse to determine protective merely moni- an isolated incident unless report performance period parent’s after the some tors provides prevent recur- deemed indicated and (See, [5].) [b] 18 NYCRR 432.2 rence. majority objection raises protect home, intended, in the but children family. perfectly however, if clear, It is

rehabilitate parents safely who have home with the child is live parents neglected him, be rehabili- must then the abused and section service’s mandate tated. This is requires capable providing "rehabilitative services it be report. parents in the involved” child or children and majority’s assertion evident The error of the regulations: nec- those services means "Rehabilitative service well-being essary safeguard and the child’s and insure family life, development preserve includ- and and to stabilize preventive ing Part as defined services but not limited

193 (18 Title, protective of this and services for children” 432.1 [i], formerly [original emphasis]). NYCRR 432.1 In- [h] deed, performed the only protective function service service”, which is not considered a "rehabilitative under this regulation, investigation is the evaluation and abuse maltreatment reports. preventive

The distinction protective between and services appears, upon reading regulations, first to be more nominal than real. Protective services "shall mean services on alleged behalf children” who are named "in an or indicated (18 report abuse and/or maltreatment” NYCRR 432.1 [p], formerly [o]). regulation 432.1 The on to goes list activities which be considered "may services children” of appropriate provision and one of these for the "arranging is: services, rehabilitative including but limited preventive services and foster care for children” (18 NYCRR 432.1 [p] ^[9] Thus, [emphasis supplied]). preventive appear services would to be a subset merely of the "rehabilitative services” which the protective may offer. (18

The regulation preventive which defines services [b]) NYCRR 423.2 lists activities this category. Among preventive services, the 15 6 are deemed "core services” which provided must be entitled families to receive mandated preventive services, if plan child service indicates need for them. services; These "core services” are: day-care services; homemaker parent services; aide parent training and services; clinical transportation; emergency and 24-hour ser- (18 vices NYCRR [b], 423.2 It [d]). is these core respondents allege are being denied to them others similarly situated, on a system-wide basis.6

Although under circum- mandated (1) stances set forth in subdivision of Social Law Services 409-a, (2) section nonmandated under subdivision provided child or his Respondents 1984,” 6. report have submitted a titled Care on the "Foster implementation of Mayor’s the recommendations from the Task Force on (See, Foster Care. Mary support affidavit of Sister of the motion for Paul preliminary injunction.) perfor- report quite appellants’ This critical delivering preventive mance in supports respondents’ claim services and very supportive preventive few families receive the most needed report "Unfortunately, services. states: as a result of State law regulations City Policy, majority the vast of funds from the Child counseling planning Welfare Reform Act are used for rather than case shelter, homemakers, care, day concrete assistance such as emergency grants.” cash 194 purpose "averting disruption impairment an or of a

the placement family child or could result in the of a will (see, [emphasis sup- care” Social Services Law 409 foster [12]). plied]; Thus, also, § 424 the Social Services Law see provision plainly of whatever Social Services Law authorizes preventive, necessary protective services, or avert placement. possibility Moreover, the law allows these foster stage protective of the services to be administered whatever investigation identifies conditions the caseworker first service impair might disrupt which, uncorrected, if left or unit. regulations promulgated Commissioner of defendant Department however, Services, of Social

the New York State offering protective nonman- bar the service caseworker any stage protective preventive inves- services at dated report tigation prior that the is to the ultimate determination day-care, Consequently, offer the caseworker cannot indicated. homemaker,7 investigatory parent training as an or services report suspected neglect is tool to determine whether a only indicated, when services are the reasonable even such meeting assessing parent’s competence means for child’s needs. (b) (4) (ii) general

Although regulation contains a 432.2 arrange to children for "services authorization to reports in child abuse and/or maltreatment named report prior families to a determination” as whether (18 [emphasis supplied]), [b] [4] [ii] 432.2 indicated NYCRR (b) (4) (x) preven- specifically regulation the offer of 432.2 bars made. has been before such a determination tive services regulation, protective caseworker service Under that protective may provide preventive in addition to services eligible long only for mandated "as as the case is services the case- 430.9 and under NYCRR services” directly providing named "to children worker is authorized, during protective majority 7. The asserts which, under investigation, provide day-care and homemaker which, (10), but "may regulation (p) services” 432.1 be considered However, a (b), regulation services. 423.2 are defined as under (10) "Program (p) support this. reading regulation 432.1 does close a result of must have been established matic need service[s] [these] these report investigation” of abuse or maltreatment into a register "pursuant with the central the case is closed must' terminate when (18 [p] 432.1 closing NYCRR indicated cases to the standards set forth” 432.9, disposition governing unfounded [10]; [c]; cf., 18 NYCRR 432.2 reports). reports in indicated abuse and/or maltreatment and their (18 supplied]; see families” 432.2 NYCRR [emphasis [b] [4] [x] also, [i]). NYCRR 423.4 Thus, upon further regulations, examination it be- comes "preventive clear that services” are rehabilitative ser- vices provided which may only after a determination abuse maltreatment report is indicated. The majority contends services which child pro- rehabilitative tective may provide service "in part duplicative preven- are tive services and in some respects more probably extensive”. Therefore, reasons, the above-cited restriction majority preclude does not protective providing service from services) type same of services (although not called preventive during continuing a investigation. however,

The problem, protective is that if the did service so, SSC right would forfeit its to reimbursement. Under sec- 409-b, tion for pre- allowable costs nonmandated 50% (see, ventive are services the State reimbursable NYCRR 423.5). majority Even the must concede that it is unreasonable penalize it by denying SSC reimbursement for services which it has a duty provide is which it authorized (2) provide, 409-a, under subdivision of section which it for is entitled to reimbursement.

The argument majority’s regulation that does not re strain other social services from families offering officials preventive nonmandated a prior determination that eligible are for mandated also misses the infra, point. discussed, As imminent risk there must be an that care, child will be placed or continued in foster and a preventive determination that services will eliminate that risk, before the is eligible for mandated (1), services under section 409-a or for nonmandated (But (b). cf., under regulation 423.3 Social Services Law 409-a § However, [2].) finding a at risk of foster that child is placement presupposes neglect report that or has an abuse been found indicated.8 legal grounds placement only 8. The imminent risk of foster when arises removing home, Family pursuant for from the 10 of the child article Act, petition allege Court must "facts found to exist. An article 10 neglected under this

sufficient to establish that or child a is an abused or, custody place parent’s article” "would the return of the child to his danger becoming neglected child.” the child in abused or imminent neglect, (Family [a], or [d].) Act of abuse Ct Unless there is evidence constitutionally strong, the child cannot be removed from the home. services, directly either request A for private through a referral DSS or parent destitute must, therefore, credible evidence be denied unless agency, is or mal- that a child in the home abused has been found parent expect completely It is unrealistic treated. will, chance, be or that will such evidence provide has investigation. report Unless a revealed without methodical finds evidence of protective and the credible been made defined, no there basis neglect, as legally abuse and, placement of foster the child is at risk finding nonman- therefore, either mandated or providing no basis for preventive services. dated service is acknowledges

The majority reports investigating responsibility with sole vested neglect report determining when a suspected neglect and for that credible has shown foregoing analysis is indicated. The defined, evidence that neglect, legally evidence child even for the parent adequately failed to has do so. The offer of means means to though offered reasonable danger eliminate might reasonably expected investigation into part of the indispensable to the child is an paren- of it is no evidence reported neglect. Without there tal fault. investigation fails to uncover such

If the service protective is exists, services official it no other social evidence where a determination authorized seek it out to make and, therefore, is neglect of indicated report suspected Thus, the offer of from the home. the child be removed may service protective preventive nonmandated services the stat- authorized under option, caseworker is an essential (4) (b) (x), conducting under 432.2 regulation ute but barred neglect. suspected all of competent investigations into cases protective only with regulation directly This conflicts not duty with its investigate, but also statutory duty service’s "those provision arrange for and monitor (18 well-being” and insure the child’s safeguard necessary period. investigatory during 432.1 [i]) 90-day NYCRR (4) (v) (b) protec- reflects the 432.2 accurately regulation While insure, investigation, during duty to tive service workers’ from further the child plan protects treatment "the requires retaining custody protected parents of their children interest may parental State interfere showing unfitness before the fault or 645, Illinois, [1972].) relationship. (Stanley 405 US 649-657 parent-child v

197 receiving maltreatment”, abuse or and that the "is (x) degree kind and of treatment services needs” clause regulation preventive option eliminates services as an plan, the treatment sary even when such services be neces- protect the child and to determine whether the child safely provided. can remain in the if home such services are (b) (4) regulation (x), essence, In 432.2 which makes no distinc- tion between services, mandated and nonmandated (2) makes § Social Services Law 409-a a dead letter. agency’s interpre-

While an administrative construction and tation of the statute under which it is functions entitled to (Matter "greatest weight” Herzog Joy, v AD2d Dept [1981]), interpre- [1st 1980], 53 NY2d 821 where such affd erroneous, law, tation is Regulation as a it cannot matter stand. (b) (4) (x) impermissible

432.2 is an obstacle to protective statutory fulfillment of the service’s duties. The option providing nonmandated funda- detecting neglect, mental to the scheme for cases of performance protective duty and to the service’s safeguard necessary "those services and insure the well-being”. child’s respondents

Consequently, entitled, law, as a matter of (b) (4) (x) regulation contrary to a declaration that 432.2 provisions impermissibly the impedes of the Social Services Law and agencies carrying out their duties thereunder. Defendant Commissioner of the New Department required York State of Social Services should be (x) (b) (4) regulation promul- on remand: to recall 432.2 and to gate regulation provisions a new consistent with the of Social (2) Services Law 409-a and the on the child duties incumbent protective law; under sections 423 of said regulations promulgated all review under Social Services Law, 6, article titles to insure that consis- regulations any tent law; with said to redraft found be incompatible inconsistent or therewith.

Mandated Preventive Services

Upon finding by [a] child a social services official "that placed preventive will be or in unless continued foster care” provided that services are "and that it is reasonable to believe by providing be to remain such services the child will able provision family”, or returned of said be to his preventive services, in accordance with the child’s service plan, is then mandated law (Social Services Law 409-a ^[1] Thus, [a]). two-part services are mandated once a preventive (1) finding the risk of placement has been made: foster (2) imminent; preventive continued is foster care eliminating in that risk. services will be effective defined, is legally Evidence of as that term is neglect, parental failure for the child once evidence of above, to do so have been offered. As noted reasonable means it will dealing impossible when with destitute families determine, cases, endangering in most the condition whether caused, example, by for sign temporary the child is a stress homeless, being symptom deep-seated paren- or a family preventive tal failure. The offer of nonmandated is an mechanism essen- protective exploratory service as danger child can be tial whether determining parent if the receives assis- eliminated or alleviated destitute basis, cases, it, on many no simply tance. Without there for, as to the need competent finding which to make a of, placement. imminence foster to a thus leads neglect

The failure evidence of detect being risk of or children as identify failure to child determination, turn, what That placement foster care. plan child service prepare that SSC triggers requirement child drafting In service accordance with section 409-e. "of the required to make a detailed assessment plan, SSC is "of the his likelihood child and circumstances” improve conditions specific preventive services” will avert, of, foster duration home or reduce the sufficiently placerfient (§ 409-e ^[1] [b]). provision of nonmandated investigation during the service protective services, if provides determining empirical basis safely in neglected child to remain will enable the any, evidence empirical home or be returned to sooner. Without efficacious, plan the 409-e child service services will be supposition. will be based mere (b) (4) shown, regulation 432.2

However, already as has been the New York (x), promulgated defendant Commissioner Services, forbids the improperly Department of Social State offering from nonmandated protective detecting as a means during investigation parental such evidence defined. Without neglect, legally being removed risk of the child legal there is no incompetence "the sole service is as the the home. Inasmuch reports suspected investigating charged with public agency” "swiftly evidence gather failure to neglect, child and its abuse competently” and means that children who would otherwise being placement be identified as at risk of foster are left in a dangerous improve home environment without escaped tragic conditions which have consequences. detection—often regulation, promulgated derogation provisions This of the (2), directly adversely of section 409-a affects the adminis- mandatory preventive tration of services under section 409-a (1). negates possibility, many Indeed, cases, it of the (1) required finding being by pre- under section 409-a made venting finding evidence which such a must be based being gathered. from ever

Appellants agrees, majority respon- contend, and the they they dents are not entitled the relief that seek because requested preventive never First, mandated services. it must be borne in mind that abused and maltreated children are the parents. services, intended beneficiaries of these their parents’ may directly Indeed, the interest conflict with those request child, in which case a for services never be importantly, imposes Second, made. and more the law a clear compelling duty investigate on SSC to and uncover those endangered cases which children are in the home and in preventive services are needed to make home safe respondents request required for them. To hold that were preventive impose duty services, is to where the law creates duty upon none and to relieve SSC of the incumbent provide preventive investigation services where reveals required, request are whether or not a has been made. policy prohibiting protective Were it not for the State’s agencies offering preventive service nonmandated ser- appropriate necessary vices when those services detecting neglect, evidence families which are entitled helped mandated services would be identified and far more often than is now the case. policy convincing

The existence of this is clear and evidence appellants statutory carry have out their duties failed to supervise competent to conduct and investigations suspected neglect; gather into all cases of finding evidence Law on which to base under Social Services (1); § 409-a where and to mandated required injunction directing appellants Therefore, law. necessary perform appears to appropriate duties both (Klostermann 531). supra, Cuomo, v findings majority points true, out, it the that the While is as (1) required pursuant discretionary, 409-a are to section imposes duty nondiscretionary Law Social Services protective agency investigate suspected all to cases service duty "swiftly competently” and a abuse or maltreatment safeguard provide necessary to to children from those services inappro- neglect Thus, in the home. while it would be abuse or performance compel purely priate for the to court distinguished, discretionary however, act, are "[w]hat be must discretionary which is from those those acts the exercise of through mandatory means which are but are executed acts 539.) (Klostermann supra, discretionary.” Cuomo, at that are v emphasize Appellants inherent in the elements discretion mandatory provision preliminary the determinations to duty timely appellants’ However, to inves- services. neglect tigate reports, probe to evidence of as for credible all necessary legally provide defined, whatever services are and to investigation during safeguard thereafter, to child discretionary. nondiscretionary functions of these is not Each appellants yield will enable is information which intended placement due of foster exists to determine whether the risk neglect any, parental services, eliminate if will and what making for the the home safe child. that risk appellants various discre- Law vests Social Services suspected tionary conducting investigations into means for during protecting neglect, and children cases of abuse and period 90-day investigatory re- and thereafter. Where discretionary to the fulfill- to those means is essential course injunction appellants’ statutory duties, will then an ment of perform, compel duty-bound issue "to regardless acts that officials are they may of whether exercise discretion 540). doing (supra, so” respondents analysis are from of the law that

It follows appellants injunction requiring to insure: that entitled statutory duty comply with their all social services workers report cause believe cases which there is reasonable professional capacity coming is an a child before them their protective com- child; that service abused or maltreated investigations reports suspected or abuse into all mence complete investiga- 24 hours and such maltreatment within any days; that, is believed tions within whenever protective neglect suffering ser- the initial based on subsequent analysis any envi- of the home vice evaluation or ronment, coordinate, shall protective arrange and monitor provision appropriate services, including to the family, nonmandated as a determining means of whether there credible evidence neglect, defined, legally unless there determined such might no services which reasonably alleviate child, endangering eliminate the condition which case the child or children shall protective be taken into custody pursuant that, provisions Act; Court Family it appears, during investigation, whenever necessary continuation of said services is safeguard child or children in the home or to make the children’s safe possible, return then home such services are to be services, provided as mandated in accordance with plan child service drafted under Social Services Law 409- § e.

It is clear that the administrators and social service workers are hard-working people good regulations faith and that and, this, are complicated perhaps, confusing. Despite it is to be remembered hand task at rehabilitation families, protection health and welfare of children and ultimately, saving of their lives. Wallach, Sandler,

Sullivan JJ., concur with J. P.; Rosenberger, Kassal an opinion by JJ., dissent Ro- SENBERGER, J.

Order, Court, Supreme New York on or County, entered 7, 1986, August modified, law, about on the without costs and disbursements, without to deny the motion of intervenors- plaintiffs for a preliminary city defen- injunction requiring the prepare dants plans within days and to all services plans; recommended in such to declare (1) (a) set findings forth in Social Services Law 409-a involve § the exercise judgment; discretion to declare child’s service plan prepared in accordance with Social Ser- vices Law 409-e does not a contract enforceable as constitute such court; and to as nonjusticiable dismiss otherwise plaintiffs’ claim system-wide regard relief declaratory services, to appeal otherwise affirmed. from the order of the on or May same court entered about unanimously appeal superseded dismissed 7,1986. order August entered on or about

Case Details

Case Name: Grant v. Cuomo

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Jul 9, 1987

Citation: 518 N.Y.S.2d 105

Court Abbreviation: N.Y. App. Div.