Mental Hygiene Legal Serv. ex rel. oliviah CC. v. Delaney (In re Mental Hygiene Legal Serv. ex rel. Oliviah)

• Decision Date: 08 August 2019
• Docket Number: 527772
• Parties: In the Matter of MENTAL HYGIENE LEGAL SERVICE, ON BEHALF OF OLIVIAH CC., an Infant, Appellant, v. Kerry DELANEY, as Acting Commissioner of the Office for People with Developmental Disabilities, et al., Respondents, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 24

109 N.Y.S.3d 469

In the Matter of MENTAL HYGIENE LEGAL SERVICE, ON BEHALF OF OLIVIAH CC., an Infant, Appellant,

v.Kerry DELANEY, as Acting Commissioner of the Office for People with Developmental Disabilities, et al., Respondents, et al., Respondent.

527772

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 3, 2019

Decided and Entered: August 8, 2019

Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), for appellant.

Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for Kerry Delaney and another, respondents.

Stafford, Owens, Piller, Murnane, Kelleher & Trombley, PLLC, Plattsburgh (Brendan P. Owens of counsel), for Champlain Valley Physicians Hospital, respondent.

Before: Garry, P.J., Lynch, Clark, Devine and Aarons, JJ.

OPINION AND ORDER

Garry, P.J. Appeal from a judgment of the Supreme Court (Powers, J.), entered May 18, 2018 in Clinton County, which dismissed petitioner's application, in a combined proceeding pursuant to CPLR articles 70 and 78 and action for declaratory judgment, to, among other things, challenge the placement of Oliviah CC. at respondent Champlain Valley Physicians Hospital and the services provided by the Office for People with Developmental Disabilities and the Department of Health.

In 2018, Oliviah CC. (hereinafter the child), a minor with complex developmental disabilities, was stranded in the emergency room of respondent Champlain Valley Physicians Hospital (hereinafter CVPH) for more than five weeks while she waited for a residential school placement. The child was not in need of medical or psychiatric care. However, neither her family nor the Office for People with Developmental Disabilities (hereinafter OPWDD) – the agency legislatively charged with protecting the welfare of persons with developmental disabilities – could provide her with safe interim housing. CVPH thus retained the child in the emergency room, where she could not attend school, participate in community activities or go outdoors, and CVPH was forced to use scarce medical resources to provide for her nonmedical needs. Unfortunately, the child is not the first minor with special needs to be marooned for weeks or months in an emergency room, as hospitals find themselves serving as the last resort for providing shelter to children in crisis.¹ The difficult legal issues presented here call into question the extent of the responsibilities of the legislative and administrative functions of government to some of our society's most vulnerable members, and the limitations on the power of courts to protect them.

The child's diagnoses include an intellectual disability, mood dysregulation disorder, intermittent explosive disorder

, attention deficit disorder and a chromosomal syndrome. Before the child was brought to CVPH, she lived with her family in Clinton County. In 2013, OPWDD deemed her to be eligible for services to avoid institutionalization, including community habilitation and respite services under OPWDD's Home and Community Based Services (hereinafter HCBS) Medicaid waiver program.² These services were administered through OPWDD's Self–Direction program, by which Medicaid funds were provided to pay for services delivered in the child's home, and the child's mother was responsible for hiring and supervising providers.

In April 2018, while the child was attending school in the Plattsburgh City School District (hereinafter the school district), she exhibited behaviors that could not be managed at school. The child, then 16 years old, was transported to the emergency room at CVPH. Upon determining that the child did not require medical or inpatient psychiatric care, CVPH sought to discharge her to her mother. Stating her concern for the safety of a sibling, however, the mother refused to accept the child's discharge back to her home without further assistance. CVPH made a report of child abandonment to the Clinton County Department of Social Services, but said Department supported the mother's decision and declined to commence abandonment or neglect proceedings. The school district determined that the child required placement in a residential school and searched for an appropriate facility, canvassing at least 27 schools, but none was immediately able to accept the child. OPWDD sought an interim placement by sending referrals to OPWDD regional offices and voluntary agencies throughout the state and, when these efforts were unsuccessful, increased the child's HCBS funding to provide additional assistance in her home. However, no qualified private providers were available. The mother reportedly asked OPWDD to make its own employees available to assist her, but OPWDD declined.

Fifteen days after the child entered CVPH, petitioner commenced this combined proceeding pursuant to CPLR articles 70 and 78 and action for declaratory and injunctive relief on the child's behalf against respondents Commissioner of Health and the Acting Commissioner of OPWDD (hereinafter collectively referred to as respondents). The petition/complaint also named CVPH as the entity holding the child in its custody (see CPLR 7002[c][1] ; 7004[b] ). The petition/complaint sought habeas corpus relief, asserted that the failure of the Department of Health (hereinafter DOH) and OPWDD to deliver services to the child was arbitrary, capricious and contrary to law pursuant to CPLR article 78, and alleged regulatory and statutory violations. Respondents joined issue by filing an answer and return. CVPH submitted a memorandum of law in support of the petition/complaint and petitioner filed a reply.

In May 2018, Supreme Court issued a decision finding that the statutory obligation to place minors in residential schools rested exclusively upon school districts, that OPWDD had no authority to place children outside of their homes,³ that OPWDD had not denied services to the child, that OPWDD's service model did not permit it to make its own employees available to provide direct services and, thus, that petitioner's statutory claims lacked merit. The court initially declined to dismiss the petition/complaint and, instead, issued a conditional order that, among other things, directed petitioner to file an amended petition naming the school district as an additional respondent.⁴ All parties were ordered to appear for a conference 10 days later, with the court further directing that, if the child was then still at CVPH, she would be discharged to the mother, and, if a placement had been found, the claims against respondents would be dismissed.

At the conference, Supreme Court was informed that the child had been discharged to a residential school for a trial placement on the previous day. Petitioner declined an offer by the court to adjourn the conference until it was determined whether this placement would become permanent. The court then issued a final judgment that incorporated the conditional order by reference and dismissed the amended petition/complaint. Petitioner appeals.⁵

We decline respondents' request to dismiss this matter as moot.⁶ "As a general principle, courts are precluded ‘from considering questions which, although once live, have become moot by passage of time or change in circumstances’ " ( City of New York v. Maul, 14 N.Y.3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010], quoting Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). As the child has been released, "the parties' rights and interests can no longer be affected by [our] determination" ( Matter of Stephen K. v. Sara J., 170 A.D.3d 1466, 1467, 97 N.Y.S.3d 348 [2019] ). Nevertheless, "[a]n exception to the mootness doctrine exists permitting courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable" ( Matter of William C., 64 A.D.3d 277, 282, 880 N.Y.S.2d 317 [2009] ; see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d at 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). The record reveals that temporary residential placements for children with complex disabilities are scarce. As the process of finding appropriate permanent placements necessarily takes time, the problem of the unavailability of interim placements is likely to recur, and, because long-term placements will usually be found before appeals can be perfected, the issue will typically evade appellate review. The matter indisputably "implicates significant and novel questions of statewide importance involving the rights of [developmentally disabled minors]" ( Matter of William C., 64 A.D.3d at 283, 880 N.Y.S.2d 317 ). Thus, the exception to the mootness doctrine applies (see Matter of Gonzalez v. Annucci, 32 N.Y.3d 461, 470–471, 93 N.Y.S.3d 236, 117 N.E.3d 795 [2018] ; Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [2012] ; Matter of Nile W., 64 A.D.3d 717, 719, 882 N.Y.S.2d 690 [2009] ).

Supreme Court did not err in directing petitioner to join the school district as a respondent. The court was authorized to determine sua sponte that a necessary party had not been joined (see Matter of Lezette v. Board of Educ., Hudson City School Dist., 35 N.Y.2d 272, 282, 360 N.Y.S.2d 869, 319 N.E.2d 189 [1974] ). Petitioner was not required to exhaust administrative remedies, as the school district had not taken any action that could have been administratively challenged (compare Cave v. East Meadow Union Free School Dist., 514 F.3d 240, 248 [2d Cir.2008] ). The school district was authorized to place the child and was actively seeking a placement; thus, its joinder was appropriate "if complete relief [was] to be afforded [among] the persons who [were] parties to the [proceeding]" ( CPLR 1001[a] ; see CPLR 1001[b] ; Education Law § 4401[2][j] ; 8 NYCRR 200.2 [b]; Matter of Northeast Cent. School Dist. v. Sobol, 170 A.D.2d 80, 83, 572 N.Y.S.2d 752 [1991], mod 79 N.Y.2d 598, 584 N.Y.S.2d...