George O, Matter of

• Decision Date: 15 December 1981
• Citation: 455 N.Y.S.2d 146,115 Misc.2d 782
• Parties: In the Matter of the Review of the Foster Care Status of GEORGE O Pursuant to Section 392 of the Social Services Law.
• Court: New York Family Court

Page 146

455 N.Y.S.2d 146

115 Misc.2d 782

In the Matter of the Review of the Foster Care Status of GEORGE O Pursuant to Section 392 of the Social Services Law.

Family Court, New York County Citywide Foster Care Review Term.

Dec. 15, 1981.

Allen G. Schwartz, Corp. Counsel of the City of New York (Joseph M. Armstrong, Sp. Asst. Corp. Counsel, New York City, Alan G. Krams, New York City, of counsel), for Commissioner of Social Services.

Gerald E. Bodell by Helen McTaggart, New York City, for New York Foundling Hospital.

Jerold S. Yale, New York City, for the Natural Mother.

Melvin Dubinsky, New York City, for the Natural Father.

Sidney Marks, New York City, Law Guardian for the Child.

RUTH JANE ZUCKERMAN, Judge:

The Commissioner of Social Services (hereinafter "the Commissioner") filed this petition, pursuant to Section 392 of the Social Services Law, to review the foster care status of George O. On June 24, 1977, the natural mother (hereinafter "respondent") signed a voluntary placement agreement transferring George's care and custody to the Commissioner, and requesting placement for him until August 31, 1977. Subsequent to the signing of the June 24, 1977 agreement, as well as at various times prior thereto, the child has been in foster care under the supervision of the New York Foundling Hospital (hereinafter "the Agency"). ¹ The Court now has before it respondent's motion ² to dismiss the petition, and to return the child to her forthwith, on the ground that the Court lacks subject matter jurisdiction in this proceeding.

The uncontroverted, albeit somewhat complicated, facts and circumstances surrounding respondent's motion to dismiss are as follows:

George O the child whose foster care status is the subject of these proceedings, was born on October 16, 1970. On April 16, 1975, at the behest of his maternal grandmother, George was placed in foster care with the Commissioner, on an emergency basis. The Commissioner, in turn, then placed him in one of the Agency's licensed foster homes. On August 20, 1975, respondent signed an agreement placing the child in foster care for an indefinite period. ³ However, only a few days later, on August 26, 1975, he was discharged from foster care--with respondent's approval--to the care of his half-sister's paternal grandmother, with whom he remained until December 22, 1976. On the latter date, the child was returned to foster care and was again placed in one of the Agency's licensed foster homes, where he has resided ever since.

On June 24, 1977, respondent, whose whereabouts were unknown between December 22, 1976 and sometime in May of 1977, signed another voluntary placement agreement. This second agreement, which transferred the child's care and custody to the Commissioner, offered a parent two options--(1) placement for an indefinite period of time, or (2) placement until a day certain or until "a specific happening or event takes place." Respondent selected the second option, and specified in the agreement that she "want... child to be placed with the Commissioner of Social Services until August 31, 1977...." ⁴ At no time between June 24, 1977 and the filing of the present petition in October of 1979 did respondent ever notify the Agency or the Commissioner--either orally or in writing--that she wished to have the child returned to her care. ⁵

Although the child continued in foster care for more than thirty days after the June 24, 1977 agreement was signed, the Commissioner never filed a petition, pursuant to Social Services Law § 358-a, for judicial approval of that agreement. ⁶

On November 27, 1978, the Commissioner filed a petition pursuant to Section 392 of the Social Services Law, for a review of George's foster care status. Because the petition alleged that respondent's whereabouts were unknown, service solely on the Agency and the foster parents was authorized. Following a hearing held on January 10, 1979, the Court (Schwartz, J.) specifically found that respondent's whereabouts were unknown, ordered that foster care be continued, and directed that the Commissioner file a petition for a second review of the child's foster care status on or about July 1, 1979. On October 15, 1979, the instant petition for a second foster care review was filed.

Respondent's main arguments in support of her motion to dismiss the present proceedings for lack of subject matter jurisdiction depend, at bottom, upon the effect of the provision in the June 24, 1977 agreement specifying August 31, 1977 as the date for the child's return to her care. More specifically, respondent contends that the child's current placement automatically terminated on August 31, 1977; that as of August 31, 1977, respondent had an absolute right to the return of her child, absent a court order entered pursuant to Section 384-a.2. (a), or proof that she was "unavailable" or "incapacitated"; that respondent at all times continued to enjoy that right, notwithstanding the fact that she made no demand for the return of the child until after the present proceeding was begun; and that the Court's jurisdiction over the child's foster care status expired on August 31, 1977. ⁷ As a subsidiary point, respondent also argues that the placement in the instant case was "illegal" even prior to August 31, 1977 by reason of the fact that the agreement signed by her on June 24, 1977 was never approved pursuant to Section 358-a of the Social Services Law, and that this Court's jurisdiction, pursuant to Section 392, cannot be grounded upon such an "illegal" placement.

I. The Effect on the Court's Subject Matter Jurisdiction of the Commissioner's Failure to Petition for Judicial Approval of the Voluntary Placement Agreement.

As was previously noted, respondent contends that because no petition was ever filed pursuant to Section 358-a of the Social Services Law for judicial approval of the June 24, 1977 placement agreement, the child's entire foster care placement under that agreement was illegal and thus cannot provide a valid jurisdictional basis for this Court's Section 392 review of his foster care status. ⁸ Although this lapse on the part of the Commissioner or the Agency, or both, is deplorable ⁹, it is clear, for the reasons set forth below, that it has no effect upon the Court's subject matter jurisdiction.

Initially, it should be noted that Section 392, which is the source of this Court's broad jurisdiction to review the status of children who have been in foster care for an extended period, was enacted in 1971. ¹⁰ It was not, however, until 1973 that the Legislature, in enacting the original version of Section 358-a of the Social Services Law, ¹¹ established for the first time the requirement of judicial approval of agreements transferring care and custody of children to a social services official. ¹² Since it is clear that the grant of subject matter jurisdiction pursuant to Section 392 preceded the enactment of Section 358-a, the question that arises is whether enactment of the latter statute expressly or by implication imposed an additional limitation upon or condition precedent to the court's subject matter jurisdiction in Section 392 proceedings.

No such express or implied limitation on the Court's jurisdiction is to be found in the provisions of Sections 358-a, 392, or 384-a of the Social Services Law. Indeed such implications as can be drawn from the language of these provisions, as well as from the legislative history of Section 358-a, and the policy underlying Section 392, are contrary to that for which respondent argues.

With respect to Section 358-a, it is clear that under that provision as originally enacted,

"the main reason for giving the Family Court jurisdiction over Voluntary Placement Agreements to guarantee federal aid for expenditures made by the Social Services Districts for the care and maintenance of dependent children who would, under other circumstances, be eligible for aid to dependent children."

Matter of David R., 101 Misc.2d 41, 43, 420 N.Y.S.2d 675 (Fam.Ct.N.Y.Co.1979). ¹³ It is, of course, true that the validity of a placement instrument and the propriety of a particular placement are also subject to examination in a Section 358-a proceeding, ¹⁴ and that it is therefore important that petitions for approval of voluntary placement agreements be filed promptly. The fact remains, however, that the sanction for failure to file promptly is a fiscal one, ¹⁵ and that pursuant to Section 358-a, a petition cannot be either dismissed or denied on the merits simply because it was not commenced in a timely fashion. On the contrary, pursuant to the express language of Section 358-a(1), the Court is required to hear and determine even those petitions that have not been filed within the period specified by statute.

Section 358-a(3) also makes clear that if the Court makes certain findings, the result of the judicial proceeding will be to "approve instrument and the transfer of the ... care and custody of the child to social services official...." Although an order transferring care and custody will then be entered, the actual transfer of care and custody to a social services official flows not from the court's order, but rather, pursuant to Section 384-a of the Social Services Law, from the agreement itself. ¹⁶ The court order was, however, necessary to ensure the state's eligibility for federal reimbursement for voluntary foster care placements. As was previously noted, it was not until 1978 that Section 358-a was amended so as to cover all voluntary placements, rather than only those involving AFDC families for which federal reimbursement was available. ¹⁷

The implications to be gleaned from the text of Section 392 and its legislative history also make clear that an order entered pursuant to Section 358-a is not a jurisdictional prerequisite to the present proceeding. Section 392, which was enacted in an effort to ensure that children once placed in foster care were not...