Usen v. Sipprell

• Decision Date: 13 April 1973
• Citation: 342 N.Y.S.2d 599,41 A.D.2d 251
• Parties: Richard S. USEN, Guardian and Litem on behalf of Shirley Mitchell, an infant, Petitioner on behalf of herself and all others similarly situated, Respondent, v. George G. SIPPRELL, as Commissioner of the Erie County Department of Social Services, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 599

342 N.Y.S.2d 599

41 A.D.2d 251

Richard S. USEN, Guardian and Litem on behalf of Shirley Mitchell, an infant, Petitioner on behalf of herself and all others similarly situated, Respondent, v. George G. SIPPRELL, as Commissioner of the Erie County Department of Social Services, et al., Appellants.

Supreme Court, Appellate Division, Fourth Department.

April 13, 1973.

Louis J. Lefkowitz, Atty. Gen., Albany, for all State appellants (Rose D. LaMendola, Asst. Atty. Gen., Buffalo, and Ruth Kessler Toch, Sol. Gen., of counsel).

James L. Magavern, Erie County Atty., Buffalo, for all County appellants (Samuel S. Rabkin, Asst. County Atty., Buffalo, of counsel).

John J. Barone, Buffalo, for Erie County Dept. of Social Services.

Anthony Manguso, Corp. Counsel, Buffalo, for appellant City of Buffalo (Herbert R. Johnston, Jr., Buffalo, of counsel).

Magavern, Magavern, Lowe & Beilewech, Buffalo, for Stanley R. Platman, M.D. (William J. Magavern, II, Buffalo, of counsel).

Legal Aid Bureau of Buffalo, Inc., for respondent (Michael A. O'Connor, Buffalo, of counsel).

Before GOLDMAN, P.J., and WITMER, MOULE, SIMONS and HENRY, JJ.

OPINION

WITMER, Justice.

By guardian ad litem Shirley Mitchell, fifteen years of age, filed a petition in the Supreme Court of Erie County in May, 1972 naming as respondents George G. Sipprell, Commissioner of Erie County Department of Social Services; Abe Lavine, Commissioner of New York State Department of Social Services; Alan Miller, Commissioner of New York State Department of Mental Hygiene; Louis Huzella, Director of West Seneca State School, West Seneca, New York; James J. Warde, Commissioner of Erie County Department of Mental Health; Stanley R. Platman, M.D., Executive Director of Community Mental Health Center of Buffalo General Hospital; Harry J. Stewart, Superintendent of Detention of Erie County Family Court; Board of Education of Buffalo Public School Department and Joseph R. Manch, Superintendent of Schools of Buffalo School Department. Alleging that she represents all indigent mentally handicapped children in Erie County having 'emotional instability which causes acting out, inappropriate conduct and occasional episodes of uncontrolled behavior', petitioner brings the proceeding under CPLR 1005 as a class action for their benefit. She alleges that approximately 3 per cent of the children with whom Eire County Family Court comes in contact annually 'suffer from emotional and mental handicaps; and that placement of children with such handicaps has been a chronic problem for institutional social workers employed by Family Court; and such children are released and receive no treatment, or they are incarcerated in state training school for juvenile delinquents, or they are referred to an institution with an inadequate program for care and treatment.' It is alleged that in June, 1963 petitioner was adjudicated a neglected child and placed in several foster care homes, and that in May, 1968 she was returned to the custody of her mother; and that petitioner has a long history of belligerent conduct, emotional instability and intellectual handicaps. By reason thereof for three years from November, 1968 an application was pending for the placement of petitioner in West Seneca State School, after which the application was rejected by that school on the ground that its staff did not have an adequate program and could not provide adequate supervision for petitioner. In June, 1971 petitioner was evaluated by the Erie County Family Court psychologists, who determined that she has an I.Q. of 52 and hence is 'mentally defective'; the Family Court psychologists diagnosed petitioner as subject to 'adjustment reaction of mid-adolescence with mental retardation', and recommended that she be institutionalized; but instead she 'was returned to her home because no institution offers a program appropriate to her needs.' In November, 1971 Erie County Family Court adjudicated petitioner a person in need of supervision, placed her on probation for one year and returned her to the custody of her mother 'because no appropriate institutional placement was available' for her. Soon thereafter petitioner ran away from home; and on March 1, 1972 a petition was filed in Erie County Family Court alleging that by reason of two incidents of shoplifting petitioner is a juvenile delinquent. That court directed its institutional social workers to refer petitioner to an appropriate placement. They referred petitioner again to West Seneca State School, the authorities of which conferred at length on the matter and in May, 1972 declined to accept petitioner on the ground that West Seneca State School does not have an appropriate program for petitioner's needs.

It is alleged that as a result 'petitioner remains incarcerated in Family Court Detention because her past history indicates (that) she would run away from home if returned to her mother, and there is no institution which will accept' her; that the Family Court Detention Center is intended only for short-term custody pending referral; that it lacks adequate facilities for therapy, educating and counseling handicapped children, and that petitioner has been detained therein longer than any other child. It is alleged that petitioner and others of her class require placement in a facility equipped to provide long-term residential care, education and treatment; that no such facility presently exists; and that petitioner and others of her class suffer irreparable injury by reason of that lack. Petitioner asserts that her present confinement by Family Court violates her rights (1) against cruel and unusual punishment, (2) to due process and equal protection, (3) to care and treatment secured by Article XVII of the New York State Constitution, and by the New York State Mental Hygiene Law, Social Services Law, Education Law and Family Court Act; that respondents are charged by said laws to furnish to petitioner her required treatment, and that each has arbitrarily and capriciously refused and failed to perform his duty in these respects.

Recognizing the absence of any existing facility for her care and treatment, petitioner asks in this Article 78 proceeding that respondents be required to submit to the court within 15 days a plan for her temporary care for treatment and within 60 days a plan for her care, education and treatment during the period of her minority and also for the care, education and treatment of all members of her class.

Pearline Kelly moved in behalf of her seven year old son, Donald, to intervene so that suitable relief might be granted for his care, education and treatment. She alleges in her moving papers that he is one of her six minor children, living with her upon public assistance; and that he is extremely hyperactive, aggressive and destructive and 'may be capable of inflicting serious injury if not closely supervised by an adult'; that his 'behavioral disorders present a special danger for' the one month old child of his minor sister, both of whom reside in the household; that he has 'severe perceptual and learning problems' and 'was totally unable to interact with other children at the Child Care Center' of the Children's Aid Society in Buffalo, New York and 'went into a completely uncontrolled temper tantrum for no apparent reason'; and that although it was recommended that he be referred to 'a long-term residential program and a tightly structured school program', the said Child Care Center declined to accept Donald on the ground that it lacks appropriate services for his special needs, and that no appropriate service for his needs exists in Erie County.

Respondents' answers admit the essential substantive allegations of the petition and intervenor's affidavit with respect to petitioner's and intervenor's needs and the lack of existing facilities for their care and treatment. Several defenses in law are raised. Special Term, 71 Misc.2d 633, 336 N.Y.S.2d 848, has swept them all aside, granted the motion to intervene, upheld the right of petitioner to maintain the proceeding as a class action, granted judgment to petitioner and intervenor substantially as demanded in the petition and affidavit, and retained jurisdiction for further action upon receipt of the ordered temporary and permanent plans for the care, education and treatment of petitioner, intervenor and all members of the class.

Upon this appeal respondents present several issues of law. It is urged that this proceeding cannot be maintained at this time because petitioner and intervenor have failed to exhaust their administrative remedies. In view of the admissions that no respondent has a facility adequate for the care of the petitioner or intervenor, and the several rejections of them, and the contention that respondents are practically and legally required to cooperate in order to work out a suitable plan or plans for the special care of petitioner and intervenor, it would appear to be 'an exercise in futility' for the court to dismiss this proceeding for lack of exhaustion of administrative remedies, and we decline to do so.

Several respondents contend that they are improperly joined as parties to this proceeding. For example, Dr. Warde, Commissioner of Erie County Mental Health, argues that his actions are not reviewable in an Article 78 proceeding because Article 11 of the Mental Hygiene Law requires approval by the Erie County Legislature for Mental Health programs of his department and that the law only encourages but does not mandate local government...