88 Misc. 2d 273 | N.Y. Sup. Ct. | 1976
By this writ, the petitioners, who are foster parents, seek the return of a four-year-old child who was placed with them for prospective adoption by the Nassau County Department of Social Services (hereinafter "the department”), to whom the natural parents had surrendered custody. The child was placed with them on March 14, 1975 after the petitioners had been approved as adoptive parents following investigation and observation over a protracted period. This child remained in their care, under periodic supervision and review by a caseworker, until December 11, 1975 when he was removed.
The removal of the child followed an investigation of an incident which occurred on December 5, 1975 and was reported to the department on December 8. The reported incident involved an alleged severe beating of the child by the foster mother, who allegedly had inflicted massive bruises and welts on the child’s back and buttocks and thigh area. A caseworker from the protective services division of the department investigated the report on the evening of December 8 and the caseworker who had been supervising the child’s care also investigated it the following day. According to the reports of these caseworkers, contained in the confidential files maintained by the department, the decision to remove the child from the petitioners’ custody was made on December 9 and implemented on December 11 before the investigation initiated by the department had been completed.
In removing the child the department also made known the withdrawal of its consent to the adoption of this child by the petitioners and indicated that it would not under any circumstances consent to the adoption of this child and presumably of any other child by these petitioners. As of December 11, 1975 the adoption papers had been filed with the Family Court and on the basis of the department’s consent, the court’s approval was expected very shortly.
Before making a substantive determination in this habeas corpus proceeding, the court will initially deal with a procedural point.
Section 400 of the Social Services Law provides:
"§ 400. Removal of children.
“1. When any child shall have been placed in an institution or in a family home by a commissioner of public welfare or a city public welfare officer, the commissioner or city public welfare officer may remove such child from such institution or family home and make such disposition of such child as is provided by law.
"2. Any person aggrieved by such decision of the commissioner of public welfare or city welfare officer may appeal to the department, which upon receipt of the appeal shall review the case, shall give the person making the appeal an opportunity for a fair hearing thereon and within thirty days render its decision. The department may also, on its own motions, review any such decision made by the public welfare official. The department may make such additional investigation as it may deem necessary. All decisions of the department shall be binding upon the public welfare district involved and shall be complied with by the public welfare officials thereof.”
When the administrative remedies under this section are exhausted, court review is available by way of an article 78 proceeding in the Supreme Court (Matter of Dionisio R, 81 Misc 2d 436; Matter of Ida Denise W, 77 Misc 2d 374). However, it is the court’s view that petitioners herein are not obligated to institute a new and separate article 78 proceeding herein to review the decision of the State Department of Social Services dated August 18, 1976.
In People ex rel. Converse v Derrick (146 Misc 73, 77-78) the court stated: "The State of New York stands in relation of parens patriae to minor children in the State, and representing the State, it is the function of the Supreme Court to determine the custody of such minors, and such determination is to be based solely on the welfare of the minors. This power of the State and function of the Supreme Court evidently transcends legislative action and contract between individuals. [Citing cases.] This office of the Supreme Court descends from King to Chancery and from Chancery to the Supreme Court of this State. Born in a time when the question of custody could be changed on the misbehavior of parents or of guardians chosen by parents, this power must still be available even in these days of social service organizations and welfare officers so that errors of heart or errors of judgment on the part of officials, as well as misbehavior by parents and by guardians can be remedied by the court. Such errors and such misbehavior, though seldom present in the care of a child, must necessarily occur so long as human nature remains in its present state”.
Accordingly, since this case was properly instituted by a writ of habeas corpus, the court is of the view that it may proceed to make a final determination in the matter. Moreover, it is to be noted that the fair hearing conducted herein under section 400 of the Social Services Law, was conducted pursuant to directive of this court and not by virtue of any act of the aggrieved petitioners and that the purpose of the fair hearing was to adduce any additional facts which could help the court in its determination. At all times, and particularly
The court now turns to the merits of the proceeding.
The court has reviewed the stenographic transcript of the fair hearing and the decision rendered thereafter by the State Department of Social Services. It is clear to this court from a review of these papers that no new facts or evidence were submitted at the fair hearing which would change the initial impressions of the "court contained in its memorandum decision dated January 29, 1976. Indeed, at the oral argument of this matter on September 16, 1976 none of the interested parties contended that any significantly new evidence had been adduced at the fair hearing.
Accordingly, the court holds that the decision of the Nassau County Department of Social Services to remove the child from the foster home and to withhold its consent to the adoption of this child by petitioners was unwarranted on this record.
While apparently conceding the jurisdiction of this court to review the department’s decision to remove the child from the foster home, respondents contend that this court has no power to review the department’s decision to withhold consent to an adoption of the child by petitioners. In this regard, respondents have cited to the court’s attention the case of Matter of Fitzsimmons v Liuni (51 Misc 2d 96, supra). The court has read the Liuni case and respectfully concludes that it does not support respondents’ contention on this issue. In Liuni the Commissioner of Public Welfare of Ulster County had placed a four-year-old child in a foster home for boarding care. Several years later the commissioner advised the foster parents that an adoptive home had been found for the child. The commissioner also rejected the foster parents’ request to adopt the child. The commissioner demanded a return of the child but the demand was refused. The commissioner then obtained a writ of habeas corpus and the matter was referred by the Supreme Court to the Family Court for trial. The Family Court in its decision in Matter of Fitzsimmons v Liuni (supra, p 109) ruled that the feasibility of legal adoption was "a relevant factor in a complete appraisal of the child’s welfare”. In Liuni, the appropriate agency had refused to approve of an
However, respondents herein have neglected to focus on another statement made by the Family Court in Liuni at page 112: "If the Commissioner is arbitrary or capricious in withholding his consent to the Liuni’s application for adoption of this child, or is guilty of an abuse of discretion, the Liunis may have a remedy through a proceeding against body or officer under article 78 of the CPLR, but if so, such remedy must be sought in the Supreme Court (CPLR 7804, subd. [b]).”
By the proceeding herein, no matter what label is annexed thereto, petitioners, the foster parents herein, have effectively asked this court (i.e., the Supreme Court) to review the decision of the Nassau County Department of Social Services to remove the child from their custody and to withhold its consent to the child’s adoption by petitioners. This proceeding was instituted and has always remained in the Supreme Court.
Accordingly, the court is of the view that it has the power to review the department’s refusal to consent to the adoption contemplated by petitioners. Upon that review it is the court’s holding that the department’s refusal was unwarranted under the circumstances present herein.
Accordingly, the writ is, therefore, sustained, and the child is directed to be returned to petitioners’ custody. The adoption proceeding instituted by petitioners may proceed.
In view of the fact the child has been away from the foster home for approximately 10 months, the department is directed to implement appropriate steps to insure that the transition back to the foster home be made gradually and be preceded by adequate preparation of the child. Should respondents decide to appeal the determination herein, the court directs that the department implement a schedule of visitation between the child and the petitioners during the course of the appellate review.