D., In re
| Decision Date | 02 August 1972 |
| Citation | 70 Misc.2d 953,335 N.Y.S.2d 638 |
| Parties | In the Matter of Arlene D. * , a Child under Eighteen Years of Age Alleged to be Neglected. In the Matter of Veronica M. *, a Child under Eighteen Years of Age Alleged to be Neglected. In the Matter of Louis H. *, a Child under Eighteen Years of Age Alleged to be Neglected. RICHMOND COUNTY S.P.C.C. (Society for the Prevention of Cruelty to Children), individually and on behalf of all the male patients less than sixteen (16) years of age, and on behalf of all of the female patients less than eighteen (18) years of age, at Willowbrook State School, and on behalf of the parents of said children, Petitioner, v. The STATE of New York et al., Respondents (two cases). |
| Court | New York Family Court |
In order to properly understand the nature and background on the five matters before this court for determination, a complete summary of the original petitions and pleadings as well as the amended petitions and motions must be set forth in chronological order.
The present petition before the court was originally one of three neglect petitions brought by the Richmond County Society for the Prevention of Cruelty to Children on behalf of three named children at the Willowbrook State School, Staten Island, New York. Named as respondents were the Department of Mental Hygiene of New York State and the State of New York.
After a hearing on the original petition, held on March 17, 1972, the petitioner withdrew two of the petitions involving the alleged neglect of Arlene D. and Veronica M. because the State Department of Mental Hygiene was able to show through testimony of the Director of the School that the allegations complained of had been corrected and they would not occur again.
The withdrawal of these two petitions was on consent of the petitioner and respondent. It is also carefully to be noted that the Attorney General representing the New York State Department of Mental Hygiene, the respondent, both at the outset of the hearings and the conclusion resulting in the aforementioned withdrawal of two cases, Did not waive objections to the jurisdiction of this court and that the Attorney General's consent was Without any prejudice on the part of the respondent Department of Mental Hygiene to any jurisdictional objections to this court which they had.
There then remained for determination only the petition of Louis H. wherein it was alleged that 'the respondent, the Department of Mental Hygiene, did fail to provide proper medical attention for the above child when the child was returned there from a home visit with a temperature of 104 degrees in December, 1971 . . .' and thus was a neglected child under Section 1012 of the Family Court Act.
Prior to the return date set for the hearing on this one remaining petition, the petitioner made a motion returnable June 6, 1972, to amend this petition to a class action by the Richmond County Society for the Prevention of Cruelty to Children individually and on behalf of all of the male patients less than sixteen (16) years of age and on behalf of all the female patients less than eighteen (18) years of age and on behalf of the parents of said children. According to the testimony of the Director of Willowbrook State School, there are 2,136 children less than sixteen years of age, 983 between sixteen and twenty-one years of age and 2,149 adults. See minutes, Willowbrook Hearings p. 55, February 4, 1972. The attorney general agreed to this class action without waiving any of its general objection to the jurisdiction of this court.
The petitioner in the amended petition added the Board of Visitors of the Willowbrook State School as a respondent in addition to the original respondents, the State of New York and the Department of Mental Hygiene. The supporting affidavits state that representatives of the petitioner during the week of January 10, 1972 visited the Willowbrook State School and inspected the Willowbrook State School housing children, both male and female, and found overcrowding, understaffing, lack of adequate clothing and shoes, unsanitary conditions in the lavatories, inadequate feeding facilities, insect infestation, lack of sufficient chairs and benches, inoperable toilet bowls, showers and sinks, no toilet paper or paper towels, inoperable drinking fountains, paint chipping off walls and ceilings, failure to provide medical attention after receiving reports of accidents, failure to record reported accidents, high incidents of hepatitis, parasitic maladies, and human excrement on the floors and other surfaces of patient wards.
As a result of these findings, the Richmond County Society for the Prevention of Cruelty to Children met in Executive Sessions with its Board of Directors and authorized public hearings to be held to investigate the above conditions and to invite interested persons to appear and testify under oath as to the conditions of the Willowbrook State School. Said hearings were held between January 31, 1972 and February 4, 1972.
The petitioner alleges that there are sufficient facts and evidence from the personal observations of their representatives and from the sworn testimony at said hearings to warrant a finding of neglect by the respondents as to the children housed at Willowbrook State School.
Petitioner therefore is asking that this court accept jurisdiction of the within petition directing an appropriate investigation be made into the allegations contained herein and adjudging the respondents to be neglectful of these children. Decision on motion and amended petition was reserved and the matter set down for hearing on the adjourned date of July 6, 1972.
The Attorney General in his answering affidavits on behalf of the repondents entered a general denial of the charges and challenged the jurisdiction of the Family Court over the subject matter and requested that the matter be dismissed without prejudice on the following grounds:
1. Section 8 of the New York Court of Claims Act. The Statute waiving immunity of State for harm to private individuals for neglect arising from performance of State function is in derogation of common law and must be strictly construed.
2. An action against public officials in official status is against the State and cannot be maintained without consent.
3. The State is immune from prosecution from liability for neglect except where it has expressly waived immunity or assumed liability by constitution or legislative enactment.
4. The State is responsible in operation and management of its schools, hospitals and other institutions only for hazards foreseen and risks reasonably to be perceived. It is liable for foreseeable consequences of acts or omissions of agents.
5. The State has the duty to take every reasonable precaution to protect patients at its mental institutions from injury whether self-inflicted or otherwise.
The Attorney General on behalf of the respondents further argues that the Family Court jurisdiction is concurrent with the Supreme Court and that the Family Court has no jurisdiction over New York State, and the petition is defective because it does not name an individual party as aggrieved and does not name an individual respondent and that the petitioner's recourse is in Article 78, CPLR, in the Supreme Court, not a class action in the Family Court and that the instant proceeding be dismissed and the petitioner directed to proceed in the proper forum.
On July 6, 1972, the date set for all previous hearings on motions and the Louis H. case, petitioner filed a further Amended Petition and Notice of Motion asking that the above described children (under twenty-one years of age) be committed to the Willowbrook State School (Department of Mental Hygiene) jointly with the City of New York Department of Social Services in accordance with Article 2, Part 3 of the Family Court Act and directing the respondent City of New York to contribute toward the expense of the maintenance, surgical, medical or therapeutic treatment and education of said children.
The petitioner in its supporting affirmation to the Amended Petition and Notice of Motion cites Section 115 of the Family Court Act conferring jurisdiction upon the Family Court as to the abuse and neglect proceedings set forth in Article 10 of the Family Court Act as well as proceedings to permanently terminate custody of a child under eighteen years of age as set forth in Article 6 of the Family Court Act, subdivision (1) thereof conferring jurisdiction upon the Family Court as to proceedings concerning mentally retarded children. Petitioner states that all of the children at the Willowbrook State School are mentally retarded and that the affidavit of the petitioner and the detailed minutes of the public hearing annexed to the petition unequivocally show that the conditions of the Willowbrook State School are such that the children housed therein are being neglected and that the facts set forth by the petitioner and the many witnesses who testified at the public hearing show that the State did not meet its responsibilities to the children under its care because of forseeable hazards, risks and consequences under the acts and omissions of the State and its agents.
The petitioner further states that Section 1012 of the Family Court Act permits the bringing of a neglect petition against a child's parent, or 'other person legally responsible for (his) care' who does not adequately supply the child with food, shelter, education or medical or surgical care. Also, Section 119(b) of the Family Court Act which states that the person legally responsible for the child's...
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