People ex rel. Ninesling v. Nassau County Dept. of Social Services

• Decision Date: 01 December 1978
• Citation: 413 N.Y.S.2d 626,46 N.Y.2d 382,386 N.E.2d 235
• Parties: , 386 N.E.2d 235 The PEOPLE of the State of New York ex rel. Joseph NINESLING et al., Appellants, v. NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 626

413 N.Y.S.2d 626

46 N.Y.2d 382, 386 N.E.2d 235

The PEOPLE of the State of New York ex rel. Joseph NINESLING

et al., Appellants,

v.

NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

Court of Appeals of New York.

Dec. 1, 1978.

Brian C. Baker, New York City, for appellants

Edward G. McCabe, County Atty. (Robert O. Boyhan, Port Washington, of counsel), for respondent.

Steven R. Shapiro and Marcia Robinson Lowry, New York City, for Children's Rights Project of New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT

JASEN, Judge.

In this proceeding, appellants, foster parents certified with respondent Nassau County Department of Social Services, seek judicial review of a determination of respondent to remove for the purpose of adoption an infant, Chuck F., placed in appellants' home under the foster care program.

The infant Chuck F., born out of wedlock on November 1, 1976, was placed by his natural mother with respondent for temporary placement while she contemplated surrender of the child for permanent adoption. Four days after the child's birth, respondent placed Chuck F. with appellants, who had on four prior occasions served as foster parents, for the express purpose of providing the child with a preadoptive foster home. Consistent with this purpose, respondent, after receiving a surrender of the child by his natural mother, notified appellants on February 25, 1977, that Chuck F. would be removed from their care for permanent placement with prospective adoptive parents. Thereafter, on April 6, 1977, appellants contacted respondent and indicated for the first time a desire to adopt the child. A conference was held on May 10, 1977, at which respondent informed appellants that they would not be permitted to adopt Chuck F. The following day respondent served appellants with a formal notice of removal. Rather than surrendering the child to respondent, appellants commenced this proceeding for a writ of habeas corpus to stay the removal of the child.

Special Term granted appellants physical custody of Chuck F. pending a "fair hearing" under section 400 of the Social Services Law, after which the Commissioner of the Department of Social Services upheld respondent's determination to remove the child from appellants' foster care. Upon a motion by respondent to confirm the commissioner's determination, Special Term ordered a supplemental judicial hearing. On the basis of testimony elicited at both the fair hearing and the supplemental hearing, Special Term denied appellants' application, concluding that the best interests of Chuck F. would be served by permitting respondent's removal of the child to an adoptive home. The Appellate Division unanimously affirmed, without opinion. There should be an affirmance.

Prior to addressing the merits, we comment briefly upon the procedural posture in which this case comes before us. Pursuant to the statutory scheme created by the Legislature (Social Services Law, § 400), a foster parent aggrieved by a determination of the Social Services Department to remove a child from a foster home may request an internal review of the determination within the department in the form of a "fair hearing". Upon the exhaustion of this administrative remedy, an aggrieved foster parent may seek judicial review of the agency's determination in the Supreme Court through the vehicle of an article 78 proceeding. (See, e. g., Matter of Mundie v. Nassau County Dept. of Social Servs., 88 Misc.2d 273, 387 N.Y.S.2d 767; Matter of Ida Denise W., 77 Misc.2d 374, 355 N.Y.S.2d 245.) The administrative and judicial review afforded an aggrieved foster parent under this statutory scheme, although dormant until the removal of a child from a foster home by the Department of Social Services, provides a sufficient forum for the consideration of the interests of foster children and parents to satisfy the demands of due process. (See Smith v. Organization of Foster Families, 431 U.S. 816, 847-856, 97 S.Ct. 2094, 53 L.Ed.2d 14.)

Rather than invoking the procedure intended for review of removal orders, appellants commenced the instant proceeding in the nature of a writ of habeas corpus to secure judicial review of respondent's determination to remove Chuck F. from appellants' home prior to the act of removal. The availability of habeas corpus as a form of injunctive relief to forestall the removal of a child from a foster home until after a "fair hearing" and judicial review of the agency's determination runs counter to the scheme adopted by the Legislature. Moreover, although habeas corpus is frequently employed as a means of resolving custody disputes, appellants, who throughout this proceeding have retained De facto custody of Chuck F., can make no claim that respondent, in which legal custody of Chuck F. is vested, has improperly restrained or detained the child as a basis for issuance of the writ. (Cf. People ex rel. Williams v. Windham Child Care, 55 A.D.2d 146, 389 N.Y.S.2d 860.) Inasmuch as respondent has not raised this issue, however, we treat this proceeding for purposes of our review as if the trial court had converted it to an article 78 proceeding to review the determination of respondent after the "fair hearing".

Turning to the merits, we proceed in our analysis with a frank realization that the factual setting before us is not a novel or isolated occurrence, but, rather, an all-too-common pattern of events indicative once again of the inherent difficulties presented in child custody cases. Before this court stand appellants who from all the testimony elicited at the hearings below appear to be of fine character and who undoubtedly are sincere in their offer of love for Chuck F. Equally zealous in its concern for the child, however, is respondent which, as the agency charged with legal custody of Chuck F., maintains that the child should be placed in an adoptive home which it has selected for the child after detailed investigation, rather than remaining for purposes of adoption in a foster home which, although investigated by respondent prior to the temporary placement for foster care, was investigated solely for that limited purpose without consideration of its future suitability as an adoptive home.

In balancing the parties' competing contentions, both of which are premised upon the best interests of the child, we believe the nature and function of foster care as a program must be borne in mind. Through the foster care program, children, who have not as yet been surrendered for adoption, are placed by a State welfare commission or a recognized social agency with foster parents for "board and care". (See Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), pp. 23-26.) The foster parent-child relationship is a temporary relationship intended to provide the child with the benefits of a family setting, as an alternative to institutionalized care. (See Katz, Legal Aspects of Foster Care, 5 Fam.L.Q. 283, 285.) As in the present case, foster parents generally enter into this compensatory arrangement with the express understanding that the placement is temporary, rather than permanent as in the case of adoption, and that the legal custodian, here respondent, retains the right to remove the child upon notice at any time.

Because of the temporary nature and function served by foster care, the criteria employed by agencies in the investigation of prospective foster parents differ from that employed in the investigation of prospective adoptive parents. (See Matter of Spence-Chapin Adoption Serv. v. Polk, 29 N.Y.2d 196, 204, 324 N.Y.S.2d 937, 944, 274 N.E.2d 431, 435.) Naturally, the former criteria center less upon psychological aspects of prospective parents and more upon their material qualifications: that is, their ability to provide "board and care". (See McNamara, The Adoption Adviser (1975), p. 122.) The common practice of matching a child's adoptive parents as closely as possible with his or her biological parents in terms of, for example, age, race and religion, is, of course, not present to the same degree in the foster care program. (See Matter of Spence-Chapin Adoption Serv. v. Polk, 29 N.Y.2d 196, 204, 324 N.Y.S.2d 937, 944, 274 N.E.2d 431, 435, Supra.) Consequently, if after temporary placement, foster parents, contrary to their agreement, express a desire to adopt a foster child, the agency's plan for the child's adoption must be delayed while, as in this case, the agency, if it objects to the adoption by the foster parents, attempts to vindicate its conception of the child's best interests through litigation. (See Matter of Runyon, 268 Cal.App.2d 918, 921, 74 Cal.Rptr. 514.)

The delay caused in such a case is amply demonstrated today. Chuck F. was placed in appellants' home on November 5, 1976 prior to the surrender of the child for adoption by the natural mother. Shortly after the natural mother formally surrendered the child, respondent requested the return of the child for permanent placement. Notwithstanding this notification on February 25, 1977, the child remains in appellants' home to this day, almost two years after the first notice of intent to remove was received by appellants.

Reluctance on the part of foster parents to deliver children placed in their care presents more than mere administrative inconvenience for the Department of Social Services and adoptive agencies: it seriously jeopardizes their continued utilization of the foster care program. On a previous occasion, we observed: "(F)oster care custodians must deliver on demand not 16 out of 17 times, but every time, or the usefulness of foster care assignments is destroyed. To the ordinary fears in placing a child in foster care should not be added the concern that the better the foster care custodians the greater the risk that they will assert, out of love and affection grown...