Lyndell C. R., Matter of

• Decision Date: 09 January 1980
• Citation: 102 Misc.2d 723,423 N.Y.S.2d 1007
• Parties: In the Matter of LYNDELL C. R., * a Child under the age of 18 years. Family Court, City of New York, New York County
• Court: New York City Court

Page 1007

423 N.Y.S.2d 1007

102 Misc.2d 723

In the Matter of LYNDELL C. R., ^* a Child

under the age of 18 years.

Family Court, City of New York, New York County.

Jan. 9, 1980.

David J. Lansner, New York City, for respondent

Charles Schinitsky, Brooklyn, law guardian; Nanette Kripke, New York City, of counsel.

Allen G. Schwartz, Corp. Counsel, New York City, for Commissioner of Social Services; Gail Steinhagen, New York City, of counsel.

DECISION ON MOTION

ELRICH A. EASTMAN, Judge:

Before the Court is a motion to dismiss two petitions for extensions of placement, Nunc pro tunc, under section 1055 of the Family Court Act.

Upon a finding of abuse, dated April 14, 1976, the child was placed with the Commissioner of Social Services on October 8, 1976, for a period up to eighteen months. The abuse consisted of the respondent-mother feeding rat poisoning to the infant. After a criminal conviction for this act the respondent-mother served a term of years in prison and was released on March 26, 1979. The placement period expired on April 8, 1978 without request for further extensions.

The Commissioner next came before the Court on December 6, 1979 upon filing a new neglect petition (N-3735/79) which dismissed by the Court for failure as a matter of law to state a cause of action. This de novo neglect petition recited facts substantially the same as set forth for these extensions of placement.

On December 10, 1979, the Commissioner filed the said two petitions for extension of placement, Nunc pro tunc, one for the period April 8, 1978 through April 7, 1979, and the other seemingly for the period April 7, 1979 through April 6, 1980.

Nunc pro tunc, is defined in Black's Law Dictionary (Rev. 4th ed.) as "a phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, I. e., with the same effect as if regularly done." See People v. Manieri, 4 Misc.2d 567, 148 N.Y.S.2d 546, 548 (Ct. of Gen. Sessions, N.Y.Cnty., 1955). The function of a Nunc pro tunc order is to correct irregularities in the entry of judicial mandates or like procedural errors. Cornell v. Cornell, 7 N.Y.2d 164, 196 N.Y.S.2d 98, 100, 164 N.E.2d 395, 396 (1959); See also C.P.L.R. §§ 2001 and 5019(a). It may not however, serve to record a fact, such as the timely bringing of a petition for extension of placement pursuant to Section 1055 of the Family Court Act as of a prior date, when such fact did not then exist. "The facts must exist and then, if the Record of them is imperfect or incomplete, it may be amended; but, if the record shows the actual facts then no order can be properly made changing them so as to take the place of an act that was required to be previously performed." Mohrmann v. Kob, 291 N.Y. 181, 51 N.E.2d 921, 923 (1943, emphasis supplied).

Thus, where process served on a defendant is jurisdictionally defective, it cannot be corrected by the court, since to permit correction would defeat the constitutional and statutory requirements for conferring personal jurisdiction on the court. See Rockefeller v. Hein, 176 Misc. 659, 28 N.Y.S.2d 266 (S.Ct. Queens Cnty., 1941). In Stock v. Mann, 255 N.Y. 100, 174 N.E. 76, motion for reargument den., 256 N.Y. 545, 177 N.E. 133 (1930), the Court of Appeals observed that an order may not be made Nunc pro tunc Which will rectify a jurisdictional defect by requiring something to be done which was not done. Likewise, the Commissioner of Social Services may not pull itself up by its bootstraps, by asking this court to issue an order Nunc pro tunc to create jurisdiction to extend placement pursuant to § 1055, where the placement and, thus, the court's jurisdiction, expired more than twenty months ago. To do so would defeat the explicit limitation contained in § 1055(b)(i).

The Law Guardian's contention that a child in foster care has a due process right to a hearing before being returned to his natural parents is erroneous and was clearly rejected by the United States Supreme Court in Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). There the Court denounced the District Court's weighing of the "harmful consequences of a precipitous and perhaps improvident decision to remove a child from (foster care)." At 840, 97 S.Ct. at 2107.

Furthermore, since the Commissioner's failure to bring a timely petition has left the court without jurisdiction, the issue of the best interests of the child may not be reached in this proceeding. Cf. Matter of Susan F., 59 A.D.2d 783, 398 N.Y.S.2d 903 (2d Dept. 1977).

As to the question of prejudice to the respondent prior to her Formal request for the return of the child, it is untenable that the burden of making formal demand for the return of the child should be borne by the...