| NY | Oct 22, 1981
OPINION OF THE COURT
In this proceeding, appellant, a foster parent who has had continuous care of the child, Alexia Stephanie P. (Stephanie) for approximately six years, seeks judicial review, by way of an article 78 proceeding, of a determination of respondent, Suffolk County Commissioner of Social Services (local agency), denying his consent to adopt Stephanie, and also of a determination of respondent, State Commissioner of Social Services (State agency), to remove the child from appellant’s foster care for purposes of adoption.
Stephanie, born June 24, 1975, was surrendered to the care and custody of the local agency shortly after her birth, and was subsequently placed in appellant’s foster care. Based upon the death of Stephanie’s natural mother in 1977, the local agency obtained guardianship and custody of the child in May of 1978. As Stephanie had been freed for adoption, this agency sought an adoptive resource. Appellant, having had the care of Stephanie for an extended period of time, was given first consideration as Stephanie’s adoptive parent. Having considered information related to Stephanie’s physical and emotional condition, appellant’s health, financial resources, age, and numerous other fac
After a conference at which appellant and her attorney appeared, the agency reaffirmed its denial of appellant’s request to adopt Stephanie, and thereafter served appellant with a 10-day notice of removal. Subsequently, at appellant’s request, a fair hearing was conducted by respondent State agency on the issue of Stephanie’s removal. This agency affirmed the local agency’s determination to remove Stephanie from appellant’s care. While the State agency recognized that Stephanie might suffer some trauma as a result of the removal, it also found that the trauma would be of short duration, and would be eased by supportive services.
Appellant then commenced two article 78 proceedings, one to review the local agency’s denial of its consent to adopt, and the other to review the determination of the State and local agencies to remove the child from her care. The proceedings were consolidated, and following a hearing, Special Term upheld the determination of the local agency and referred the proceeding brought against the State agency to the Appellate Division, as it involved a “substantial evidence” question (CPLR 7804, subd [g]). The Appellate Division affirmed the judgment of Special Term, finding that the local agency’s denial of its consent to adopt was not arbitrary and capricious, and unanimously confirmed the determination of the State agency which affirmed the local agency’s decision to remove Stephanie from foster care, finding that this determination was supported by substantial evidence. There should be an affirmance.
An important threshold question on this appeal concerns the appropriate standard of review of the agency determinations in this proceeding. Appellant would have the courts undertake a de novo review of the agencies’ actions, to determine what course of action would be in the “best interests of the child”. While “best interests” is the standard of review in an adoption proceeding, it is only peripherally involved in the judicial review of the determinations
Appellant’s contrary argument is based upon the provisions of subdivision 3 of section 383 of the Social Services Law, which entitles appellant to a “preference and first consideration” based upon her continuous care of Stephanie for a period of two years or more.
Nor does our decision in People ex rel. Ninesling v Nassau County Dept, of Social Servs. (46 NY2d 382) compel a different conclusion. In Ninesling (at p 389), this court, in the context of a removal proceeding, set forth the burden of proof which foster parents must meet when they seek to retain custody of a child. In so doing, we noted that in considering the future viability of the foster care program, we were not abdicating our “duty as parens patriae to determine custody on the basis of the best interests of the child”. It must also be noted, however, that in considering the best interests of the child, we did not fashion a new standard of judicial review for article 78 proceedings involving child
The discussion in Ninesling recognizes that an article 78 proceeding is the proper procedural mechanism by which to review agency action in relation to removal. It is also the appropriate vehicle for review of an agency determination denying consent to adoption by foster parents (see Social Services Law, § 372-e, as added by L 1979, ch 611, § 5). However, we note that a de novo review of Stephanie’s best interests will take place in the eventual adoption proceeding.
Given that appellant’s entitlement to a “preference and first consideration” lessens her burden of proof before the agency with regard to establishing that she could provide a better adoptive home than that planned by the agency, we must determine whether the denial of consent to adopt by the local agency was “arbitrary and capricious”, because the agency either failed to base its determination on what it rationally concluded was in Stephanie’s best interests or failed to give appellant the consideration she was due as one entitled to a preference. The agency’s denial of appellant’s application was based on its belief that a younger, two-parent family would better serve Stephanie’s needs. Appellant, on the other hand, believes that her long period of care for Stephanie and the trauma that would result from her removal from appellant’s home require that her adoption application be approved. Without expressing any view as to
Turning next to respondent State agency’s actions, we must determine whether its decision to remove Stephanie from foster care was based upon substantial evidence that removal was in her best interests, inasmuch as this decision was rendered after a fair hearing. The State agency determined that the local agency had denied appellant’s application for adoption on the basis of her age, single parenthood, and financial difficulties, that the local agency believed
We emphasize, as did the courts below and the two respondent agencies, that at all times appellant has given Stephanie love, warmth and considerate care. Her desire to adopt Stephanie is obviously sincere. As has been noted previously by this court, however, the legal qualifications required by the courts of prospective adoptive parents differ from those required of foster parents, the latter committing themselves only to temporary care of the child (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204).
Respondents’ actions in refusing to allow appellant to adopt Stephanie cannot be termed “arbitrary and capricious” or unsupported by “substantial evidence”. In this regard, we note again that in the eventual adoption proceeding, in which appellant has a right to intervene (Social Services Law, § 383, subd 3), the court will undertake a de novo review of Stephanie’s best interests, at a point when the adoption agency’s plan will be available to the court, and the determination can thus be properly made.
Accordingly, the order of the Appellate Division should be affirmed, without costs.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed.
. This time requirement was changed to 18 months by section 6 of chapter 611 of the Laws of 1979.
. Even in the instant proceedings, Stephanie’s best interests have great relevance. It is respondents’ duty to act in the best interests of the children who are placed in their care; if they do not so act, their actions must be deemed “arbitrary and capricious”, or not based on “substantial evidence”. To the exent that we adopt a more restrictive standard of review, we do not ignore