Lorie C. v. St. Lawrence County Dept. of Social Services

• Citation: 424 N.Y.S.2d 395,400 N.E.2d 336,49 N.Y.2d 161
• Parties: , 400 N.E.2d 336 In the Matter of LORIE C., a person in need of supervision, Appellant, v. ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.
• Decision Date: 08 January 1980
• Court: New York Court of Appeals

Page 395

424 N.Y.S.2d 395

49 N.Y.2d 161, 400 N.E.2d 336

In the Matter of LORIE C., a person in need of supervision, Appellant, v. ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

Court of Appeals of New York.

Jan. 8, 1980.

William F. Roberts, Jr., Norwood, law guardian, for appellant

Terrence J. Whelan, Fine, and Ethan K. Phillips, Brasher Falls, for respondent.

Robert Abrams, Atty. Gen. (Shirley Adelson Siegel, Asst. Atty. Gen., and Clifford A. Royael, Albany, of counsel), for New York State Commissioner of Social Services, amicus curiae.

OPINION OF THE COURT

MEYER, Judge.

Does section 255 of the Family Court Act authorize a Family Court Judge to put into effect a plan allocating responsibilities between the court's Probation Department and the local Department of Social Services agency with respect to, and establishing standards and procedures in relation to, placement of juvenile delinquents and persons in need of supervision in foster homes, the training of foster parents, supervision of court-placed juveniles, change of placement or of supervision, termination of placement, and providing that "any governmental employee and law guardian shall report to the Court in writing any violation of the provisions of this plan which shall come to his or their attention", so that proceedings for enforcement may be had? The Appellate Division held that as a matter of law the order made in the instant proceeding exceeded the authority granted by the section. It reversed on the law and the facts and dismissed the order to show cause dated January 23, 1976 by which was begun that part of the proceeding related to the plan, as distinct from the placement of the infant, Lorie C., in relation to which the proceeding originated. The order of the Appellate Division should be affirmed.

Lorie C. was adjudged a person in need of supervision (PINS) and by order of October 15, 1975 was placed in the custody of the St. Lawrence County Department of Social Services and under the supervision of the St. Lawrence County Probation Department with directions to report to her probation officer and to follow his recommendations for counseling. Some difficulty in obtaining a foster home for Lorie was encountered because the Probation Department insisted upon a home in the Massena School District and Social Services had used up its resources in that district. At an informal hearing on December 10, 1976, the court raised the issue whether the program for reserve home accommodations directed in Matter of Edward M., 76 Misc.2d 781, 351 N.Y.S.2d 601, aff'd Sub nom. Matter of Murcray, 45 A.D.2d 906, 357 N.Y.S.2d 918, on later hearing 84 Misc.2d 363, 373 N.Y.S.2d 739, had been implemented. On January 30, 1976 an order to show cause was served on the Department of Social Services. This order, however, referred only to the earlier order in Lorie's case and only required it to show why an order should not be entered directing it to obtain a suitable foster home for her.

Social Services answered raising the question of the jurisdiction of the court over it and of the power of the court to award custody to it but place supervision of the child with Probation. The court denied Social Services' motion to dismiss in a decision indicating its intention to continue both the matter and the appointment of the Law Guardian because of its overriding concern that children be promptly placed in foster care.

Prior to March 1, 1976 Lorie was in fact placed. The proceeding was, nevertheless, continued, hearings being held on April 29, 1976, June 2, 1976 and September 7, 1977, preliminary decisions being filed on October 14, 1976 and July 22, 1977, and a final order being entered on November 22, 1977. The Department of Social Services refused to participate in any part of the proceeding after Lorie was placed, its counsel appearing at the September 7, 1977 hearing only to state the department's position that the court was without power to order the plan. The November 22, 1977 order approved the plan, which is entitled "Court-Ordered Plan Establishing Responsibilities, Standards and Procedures Relating to Juvenile Delinquents and Persons in Need of Supervision Placed in Family Boarding Homes in St. Lawrence County", and directed that, effective December 1, 1977, it be implemented and followed in all respects by the Probation Department and the Department of Social Services.

The plan required Social Services to identify and certify foster homes and to maintain a reserve of such homes, to train foster parents and certify to Probation the completion of such training, and to supervise children not on probation. It gave Probation responsibility for planning, placement, and supervision of children who were on probation, and directed Social Services not to interfere. It required also that children, parents, governmental employees and Law Guardians report violations, which, the plan and the decision made clear, would be dealt with by contempt citation. As already noted, on appeal by the Department of Social Services, the order of November 22, 1977 was reversed and the order to show cause of January 23, 1976 was dismissed.

We agree with the Appellate Division that the sincerity of the Family Court Judge in attempting to fix responsibilities between Social Services and Probation is beyond doubt. We agree also, however, that the plan he sought by his order of November 22, 1977 to initiate is invalid both because, as the Appellate Division held, it exceeded the authorization contained in section 255 of the Family Court Act and because it encroached upon powers granted by section 398 of the Social Services Law to the Department of Social Services.

Section 255 of the Family Court Act as it read prior to amendment by chapter 470 of the Laws of 1977, was entitled "Cooperation of officials and organizations" and provided: "It is hereby made the duty of, and the family court or a judge thereof may order, any state, county and municipal officer and employee to render such assistance and cooperation as shall be within his legal authority, as may be required, to further the objects of this act. It is hereby made the duty of and the family court or judge thereof may order, any agency or other institution to render such information, assistance and cooperation as shall be within its legal authority concerning a child who is or shall be under its care, treatment, supervision or custody as may be required to further the objects of this act. The court is authorized to seek the cooperation of, and may use, within its authorized appropriation therefor, the services of all societies or organizations public or private, having for their object the protection or aid of children or families, including family counseling services, to the end that the court may be assisted in every reasonable way to give the children and families within its jurisdiction such care, protection and assistance as will best enhance their welfare."

The section derived from section 56 of the Domestic Relations Court Act and section 37 of the Childrens Court Act, both of which were essentially hortatory. In 1972 the first sentence was amended to insert the words "and the family court or a judge thereof may order, any state" in place of the word "every" and to insert the words "legal authority, as may be required" in place of "jurisdictional power", and the second sentence was rewritten on essentially similar lines. In 1977 the first sentence was again amended by the insertion between the words "municipal" and "officer" of the words "and school district" and by the addition at the end of the first sentence of the following: "provided, however, that with respect to a school district an order made pursuant to this section shall be limited to requiring the performance of the duties imposed upon the school district and board of education or trustees thereof pursuant to sections forty-four hundred two and forty-four hundred four of the education law, to review, evaluate, recommend, and determine the appropriate special services or programs necessary to meet the needs of a handicapped child, but shall not require the provisions of a specific special service or program, and such order shall be made only where it appears to the court or judge that adequate administrative procedure to require the performance of such duties is not available."

We have considered the section only twice since its 1972 amendment, once in Matter of Antonio P., 40 N.Y.2d 960, 390 N.Y.S. 919, 359 N.E.2d 427, in affirming a holding that it did not authorize an order requiring expungement of police records, and once in Matter of Ellery C., 32 N.Y.2d 588, 591, 347 N.Y.S.2d 51, 53, 300 N.E.2d 424, 425, in a passing reference to the third sentence of the section as supporting the conclusion that confinement of a PINS child in a training school is not permissible. It has, however, been considered a number of times by both Appellate Division and Trial Judges, with varying results. The order sought or made was held not authorized by the section in People ex rel. Thorpe v. Clark, 62 A.D.2d 216, 227, 403 N.Y.S.2d 910, 917 (since the section does not expand the court's legal authority, commitment of a retarded delinquent can only be decreed under the procedures established by the Mental Hygiene Law); New York City Housing Auth. v. Miller (60 A.D.2d 823, 401 N.Y.S.2d 992, affg. on opn. below 89 Misc.2d 141, 390 N.Y.S.2d 806 (section does not authorize an order requiring the housing authority, an independent public corporation, to provide immediate housing, since such an order is not one for "information, assistance or cooperation")); Matter of Currier v. Honig, 50 A.D.2d 632, 374 N.Y.S.2d 758 (section does not authorize an ex parte order requiring the county to appoint an additional Assistant County Attorney, which can only be done when authorized by the county legislature); Matter of Carpenter, 94 Misc.2d 908, 405 N.Y.S.2d 972 (section...