Sinhogar v. Parry

• Decision Date: 18 June 1981
• Citation: 425 N.E.2d 826,53 N.Y.2d 424,442 N.Y.S.2d 438
• Parties: , 425 N.E.2d 826 Carlos SINHOGAR, by His Guardian ad Litem Kenneth Clark, et al., on Their Own Behalf, and on Behalf of All Others Similarly Situated, Appellants-Respondents, v. Carol PARRY, Individually and as Assistant Administrator of Special Services for Children, et al., Respondents-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 438

442 N.Y.S.2d 438

53 N.Y.2d 424, 425 N.E.2d 826

Carlos SINHOGAR, by His Guardian ad Litem Kenneth Clark, et al., on Their Own Behalf, and on Behalf of All Others Similarly Situated, Appellants-Respondents, v. Carol PARRY, Individually and as Assistant Administrator of Special Services for Children, et al Respondents-Appellants.

Court of Appeals of New York.

June 18, 1981.

Marcia Robinson Lowry, George Kannar and Maria H. Sandoval, New York City, for appellants-respondents.

Robert Abrams, Atty. Gen. (Robert J. Schack and Shirley Adelson Siegel, Asst. Atty. Gen., of counsel), for State of New York, respondents-appellants.

Allen G. Schwartz, Corp. Counsel, New York City (Marjorie E. Bornes and Ronald E. Sternberg, New York City, of counsel), for J. Henry Smith, respondent-appellant.

Carolyn A. Kubitschek and Norman Siegel, New York City, for MFY Legal Services, Inc., amicus curiae.

Charles Schinitsky, Brooklyn, Steven G. Asin, New York City, Janet R. Fink and Carol Sherman, Brooklyn, for Legal Aid Society of City of New York, Juvenile Rights Division, amicus curiae.

OPINION OF THE COURT

JONES, Judge.

The procedures presently available to both children and their parents to obtain judicial review of out-of-State placement of emotionally disturbed and mentally retarded children meet the requirements of both the Federal and our State Constitutions.

This action was brought as a class action for declaratory and injunctive relief and for damages. Plaintiff Carlos Sinhogar (a pseudonym) is described in the complaint as an emotionally disturbed 17-year-old child who had been placed in the custody of the New York City Department of Social Services following an adjudication by Family Court that he had been neglected by his parents, both of whom have since died. It is alleged that on February 15, 1977 Carlos was sent to an institution in Roanoke, Virginia, which provided care to children who are mentally ill or mentally defective, or both. He is represented in this action by Dr. Kenneth Clark, his guardian ad litem.

Plaintiff Jeannette Morgan (also a pseudonym) is similarly described in the complaint as a 17-year-old emotionally disturbed child who was placed in the custody of the New York City Department of Social Services by her aunt in 1974. It is alleged that in May, 1976 Jeannette was sent to a school in Hialeah, Florida, which also provides care for children who are mentally ill or mentally defective, or both. She, too, is represented in this action by Dr. Kenneth Clark, who is likewise her guardian ad litem.

Plaintiff John Evans is described in the complaint as a retarded 16-year-old child living with his parents in Brooklyn, New York. It is alleged that he has been evaluated as in need of placement outside his home which his parents cannot afford and that defendants Smith and Parry have failed and refused to offer him placement within the State although they have offered placement for him outside the State. ¹ He is represented in this action by John and Sylvia Evans, his parents and guardians.

Named defendants in the action were: Carol Parry, Assistant Administrator of Special Services for Children, an agency within the New York City Human Resources Administration, the Department of Social Services (the agency alleged to be responsible for supervising and approving care for New York City children in need of care), J. Henry Smith, administrator of the Human Resources Administration of the City of New York and Commissioner of the New York City Department of Social Services, and Philip Toia, Commissioner of the New York State Social Services Department. Each of these defendants was named individually and in his or her official capacity.

Prior to the service of an answer on behalf of any of the named defendants, by order to show cause signed August 18, 1977, plaintiffs moved for partial summary judgment and for class action certification. On December 27, 1977 defendant Toia made a motion to dismiss the complaint for failure to state a cause of action on which relief could be granted and, on February 17, 1978, a motion to substitute Barbara B. Blum as Commissioner of the New York State Department of Social Services and to dismiss the complaint as to him personally.

By decision and order dated January 16, 1979 Supreme Court: (1) granted the motion for substitution; (2) denied the motion to dismiss as to Toia personally; (3) denied the application for class action status; (4) denied plaintiffs' motion for partial summary judgment based on assertions that the out-of-State placements violate the provisions of the Social Services Law (§ 398, subd. 6, par. and that the placements were not provided for under section 374-a of that law (on the ground that questions of fact existed); (5) granted plaintiffs' motion for partial summary judgment premised on the contention that out-of-State placements pursuant to the Interstate Compact on Placement of Children violated plaintiffs' rights to due process, to the extent of directing defendants to submit to the court a proposal for a review procedure whereby a parent or guardian could challenge an out-of-State placement; ² (6) denied defendant Toia's motion to dismiss the complaint on the ground that plaintiffs had not legally established the existence of a right to treatment; and (7) denied plaintiffs' motion for summary judgment enjoining all further out-of-State placements and granted defendant Toia's counter motion to dismiss the allegations in the complaint that out-of-State placements constituted an unlawful delegation by the State officials (98 Misc.2d 28, 412 N.Y.S.2d 966).

On appeals by the city and the State officials defendants, the Appellate Division modified to declare out-of-State placement of foster care children pursuant to the Interstate Compact on Placement of Children (ICPC) constitutional and to grant defendant Toia's motion to dismiss the complaint against him in his individual capacity, and as so modified, affirmed the order of Supreme Court. ³ We now direct dismissal of the complaint to the extent that it seeks damages against Commissioner Blum and otherwise affirm the disposition at the Appellate Division. ⁴

First, we clear away the preludial underbrush. No objection was raised to the substitution of Barbara B. Blum as Commissioner of the New York State Department of Social Services. To the extent that plaintiffs assert a right to recover damages against Commissioner Blum their claim must be dismissed; claims against the State and its officers acting in their official capacity are cognizable only in the Court of Claims. For the reasons stated by Justice JOSEPH P. SULLIVAN at the Appellate Division, the complaint against Philip Toia in his individual capacity was properly dismissed (cf., also, 154 East Park Ave. Corp. v. City of Long Beach, 52 N.Y.2d 991, 436 N.Y.S.2d 288, 420 N.E.2d 86). Finally in this category, we observe that both courts below have held, and we agree, that whether there has been a denial of the substantive constitutional rights of any of these three children and whether the statutory rights of any of them under sections 374-a and 398 (subd. 6, par. of the Social Services Law, have been violated cannot be determined on the present motions to dismiss and for summary judgment. Allegations have been made and questions of fact have been raised requiring disposition of these issues by trial, for which purpose the case will be remitted. Accordingly, it would be premature and inappropriate on the present appeal to address matters which can only be resolved after trial. There remain then for our consideration and disposition two basic contentions advanced by appellants: first, that irrespective of what may prove to have been the factual context in these particular cases, the Constitutions mandate that advance notice and an opportunity to be heard be afforded prior to each out-of-State placement; and, second, that the procedures now available for postplacement judicial review do not meet constitutional due process requirements.

We turn then to the substance of plaintiffs' contention that present procedures for the out-of-State placement of emotionally disturbed and mentally retarded children deny them their constitutional rights to due process. Their argument is premised on a claim of constitutional rights of two sorts. They assert, first, that any out-of-State placement adversely and impermissibly affects what they characterize as "the fundamental right to an ongoing family relationship of the parents and children involved", and, second, that such placement similarly affects what they describe as "the child's separate, constitutionally protected entitlement to certain state-created benefits which, in this case, arise from New York statutes and regulations". The asserted denial of the first such right is based on the fact that a placement hundreds or perhaps thousands of miles away from the home of parents and siblings will likely place severe strains on familial visitations and other communications. The claim of denial of the second such right is grounded in a lack of assurance that the quality of care in out-of-State facilities, including food, clothing, shelter and medical treatment, will equal that provided in in-State institutions which are under the supervision and control of city and State social service officials. The ultimate gravamen of their complaint is that there are presently no procedures available to plaintiffs or to their families to assure the adequate protection and enforcement of these two underlying "constitutional" rights.

Because there remain for disposition, following the development of factual evidence at trial, the claims advanced that the out-of-State placements of these three children have operated to infringe impermissibly the two substantive entitlements asserted on their behalf, it is unnecessary and would be inappropriate for us now to consider whether these plaintiffs do have either or...