Matter of Jean-Baptiste v SCO Family of Servs.
2011 NY Slip Op 32490(U)
July 22, 2011
Supreme Court, Nassau County
Docket Number: 16776/10
Judge: F. Dana Winslow
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5'wm
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HON. F. DANA WINSLOW,
Justice
TRIAL/lAS, PART 4
NASSAU COUNTY
In the Matter of the Application of
PIERRE JEAN- BAPTISTE and VENIESE
JEAN- BAPTISTE,
Petitioners,
MOTION SEQ. NO. : 001, 002
MOTION DATE: 5/3/11
For a Judgment Pursuant to Article 78 of the
Civil Practice Law and Rules,
-againstINDEX NO. : 16776/10
SCO FAMILY OF SERVICES,
Respondent.
The following papers having been read on the motion (numbered 1-5):
Notice of" Petitio n..................... .... ..................
Verified Answer to Petition...................................................................
Notice of Motion.....
Affirma ti
0 n
in Op pos iti
n.............................................................. .....................................
Affidavit in Rep ly
Application pursuant to CPLR Article 78 by petitioners Pierre Jean- Baptiste and
Veniese Jean- Baptiste to inter alia annul the determination of respondent SCO Family
of Services (SCO) dated May 6, 2010 , which concluded that petitioners ' residence located
at 419 Pine Place, Uniondale , New York could no longer be maintained as a foster home
and would be closed effective May 28 , 2010 , is determined as follows.
Motion by respondent sca pursuant to CPLR 100l(a) and 1003 to dismiss the
proceeding for failure to join an indispensable party is determined as follows.
BACKGROUND
Since in or about 2005, petitioners , who allege that they possess a certificate for
the care of children at board with the Nassau County Department of Social Services, have
operated a foster home for the care of children at 419 Pine Street , Uniondale , New York
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under the auspices of respondent sca , I a not- for- profit foster care agency authorized by
the New York State Office of Children s and Family Services to provide foster care
services. According to petitioners , they have successfully housed several children since
in or about 2005 when their relationship with the Salvation Army began.
From June 24 2009 to January, 2010 , a seventeen- year-old boy named Matthew
boarded at petitioners ' residence. Petitioners describe Matthew as uncommunicative and
a dif1icult child , who did not want to participate in personal hygiene and refused to
While petitioners claim that respondent sea was formerly knows as Salvation Army,
respondent SCO avers that the allegation is inaccurate. Rather , sca absorbed the Salvation
Army Program and is a contract service provider to the Nassau COWlty Department of Social
Services.
371(10)(a) defines an authorized agency as:
(AJny agency, association , corporation , institution , society or other organization
which is incorporated or organized under the laws of this state with corporate power or
empowered by law to care for , to place out or to board out children , which actually has
its place of business or plant in this state and which is approved , visited, inspected and
supervised by the office of children and family services or which shall submit and
consent to the approval , visitation , inspection and supervision of such office as to any
and all acts in relation to the welfare of children performed or to be performed under
this title; provided, however , that on and ailer June first , two thousand seven , such term
shall not include any for- profit corporation or other for- profit entity or organization for
the purposes of the operation , management , supervision or ownership of agency
boarding homes , group homes , homes including family boarding homes of family free
homes , or institutions which are located within this state.
Social Services Law
defines a foster parent as:
any person with whom a child , in the care, custody or guardianship of an
authorized agency, is placed for temporary or long- term care , and " foster child" shall
mean any person, in the care , custody or guardianship of an authorized agency, who is
placed for temporary or long- term care.
3 71 (19)
371(20J as:
a foster parent who is certified or licensed pursuant to section three hundred
seventy- five or section three hundred seventy-six of this article , or otherwise approved
and who has successfully completed a training program developed by professionals
experienced in treating children who exhibit high levels of disturbed behavior
emotional disturbance or physical or health needs. For any such child placed in their
care , such parent shall assist in the implementation of the therapeutic treatment portion
of the family service plan required by section four hundred nine-e of this article.
A therapeutic foster parent is defined in
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follow rules of the house. " They maintain , which respondent sca denies , that the agency
failed to notify them that Matthew suffered from bipolar disorder for which he takes
medication. Although they attempted to elicit help from the Home Finding Supervisor to
deal with the difficult situation they were experiencing, they allege that their calls for help
were ignored.
In an undated letter sent to respondent sca " several months ago " petitioners set
the agency s failure to communicate and this lack of
responsiveness on the part of the Home Finder. They therefore requested an opportnity
to speak their minds and clarify the situation as to their future service with the agency. A
meeting was held on May 5, 2010 at which the parties ' respective concerns were
discussed including:
petitioners ' lack of abilty to manage therapeutic children with
behavior issues;
forth their concerns
vis-a-vis
petitioners ' lack of understanding of the unique needs of
therapeutic children with severe behavioral issues;
petitioners ' difficulty in communicating with agency staff
members regarding the children s needs and personal
concerns;
petitioners ' inappropriate/hostile reaction to children
behavior during an agency meeting; and
petitioners ' failure to attend a requested meeting to discuss
issues and concerns presented by the Home Finding
Supervisor.
Petitioners ' allegations of staff " slights " toward them and lack of responsiveness to
their alleged calls for help were also discussed.
By letter dated May 6 , 2010 , the director of the Therapeutic Foster Boarding Home
Program, Mineola site at SCO Family of Services , informed petitioners that respondent
SCO had concluded that it was unable to maintain petitioners ' residence as a foster home
and it would be closed effective May 28, 20 I O.
Petitioners contest the legitimacy of respondent SCO' s action contending that it is
without merit , retaliatory and discriminatory based upon their Haitian national origin and
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the purported language barier
falsely believed existed.
ANAL YSIS
Pursuant to CPLR g7803(3), the relevant question is whether a detennination was
made in violation of lawful procedure , was affected by error or law , was arbitrary and
Halperin v City of New Rochelle 24 AD3d 768 , 770
(2nd Dept.). Judicial review of an administrative determination is limited to an
evaluation of whether that determination is consistent with lawful procedures, whether it
is arbitrary or capricious and whether it is a reasonable exercise of the agency
respondent
capricious or an abuse of discretion.
discretion.
Town of East Hampton 78 AD3d 693 , 694 (2
Birch Tree Partners, LLC
Dept. 2010). An arbitrary action is one without sound basis in reason and is generally
taken without regard to the facts.
Matter of Pell
Board of Education 34 NY2d 222 , 231
(1974). A penalty imposed by an agency wil be upheld unless
it is so disproportionate to
the offense as to be shocking to one s sense of fairness thus constituting an abuse of
Sofir 96 NY2d 32 38 (2001) (citations and quotation marks omitted).
With respect to the certification of foster parents , the requirements are set forth
primarily in 9374 through 9378 of the Social Service Law and 18 NYCRR 9443. Social
Services Law 9376 provides that:
( a)n authorized agency which shall board out any child or
minor under the age of eighteen years shall issue to the person
receiving such child and/or minor for board a certificate to
receive board or keep a child/or minor under the age of
eighteen years.
discretion.
Kelly
Before a certificate can be issued , the agency is required to investigate the home
evaluating such information
inter alia
, as
age;
health;
physical functioning;
Income;
marial status;
employment of the applicants;
information regarding the physical facilities of the
prospective foster home;
the names of those persons who wil be sharing living
accommodations with the child in foster care
including the names of persons 18 years of age or
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older living in the home;
whether any other application for certification or approval
has ever been made , whether such application was
accepted or rejected and , if rejected , the reasons therefor.
18 NYCRR Social Services
443. 2(b)(l2).
379(I), a certificate or license to receive , board or keep
any child and/or minor under the age of eighteen years
may be revoked for cause by the authorized agency or the
commissioner of social services by which it was issued * * *
(and) may be revoked for cause by the commissioner.
Under Social Services Law
In the event the agency denies certification of the foster parents or decertifies them
the foster parents may appeal the denial to certity or decertify. The appeal is directly to
the Supreme Court by way of an Article 78 proceeding by fiing a Notice of Petition and a
Petition alleging abuse of discretion. Carrieri , Practice Commentaries , McKinney s Cons
Laws of N. Y. Book 52A , Social Services g377 (2010).
It appears from the parties ' submissions that respondent complied with the
procedure governing non-renewal or revocation of a certificate or letter of approval set
forth in 18 NYCRR g 443. II(a) and (b) which includes:
(a) (1) advising the foster parents before the expiration date of
the certificate or letter of approval foster parents must be
advised that the agency does not plan to renew the certificate
or approval;
(2) non-renewal or revocation of a certified or approved foster
parent may be based upon such factors as failure to meet one
or more of the criteria for certification or approval set forth in
this Part or upon lack of need for a foster home with its
particular characteristics;
(3) the reasons for non-renewal or revocation must be
specified in a letter postmarked at least 20 days before the
expiration date or the decertification date of the certificate or
approval.
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(b) the agency is required to arrange for the foster parent or
relative foster parent to meet with an official of the agency to
review the decision and the reasons for the agency decision.
Public welfare agencies such as respondent are accorded wide discretion in the
discharge of their duties. No provision of the Social Services Law , however , restricts the
exercise of respondent's discretion in determining the proper placement of children in a
Matter of Bonner v Monroe County Dept. of Social Servs. , 286
AD2d 874 , 875 (4 Dept. 2001). In this regard
378(5) provides
that:
(t)he department shall establish and may alter or amend
regulations governing the issuing and revocation of such
licenses and certificates (to receive , board or keep any child
and/or minor) and prescribing standards , records
accommodations and equipment for the care of children
and/or minors received under such licenses and certificates.
particular foster home.
, Social Services Law
According to the affidavit of the Director of Services to the Children Unit of the
Nassau County Department of Social Services , the Nassau County Department of Social
Services had no foster children in petitioners ' foster home when respondent chose to
close the home. Although the Department had a contract with respondent sca , it avers
that it had no role or responsibilty in said respondent's decision to close petitioners
foster home and generally has no input on the closure of any voluntary agency s foster
home with which it had contracts. According to the affidavit , Matthew Philips was
placed in petitioners ' home during the period June 26 2009 through Jan. 16 2010.
The Court finds that under the circumstances extant , respondent sea' s decision to
close petitioners ' foster home was not arbitrary, capricious or an abuse of discretion given
the respondent's duty to comply with all certification and approval requirements set forth
in 18 NYCRR Part 443 and to approve or deny applications for certification as a foster
443.
Petitioners ' application pursuant to CPLR Article 78 , inter alia , to annul the
home. 18 NYCRR
Petitioners ' home had originally been certified by the Nassau County Department of
Social Services during the period September 3 , 2004 to August 23 , 2005, at which time
petitioners requested that the home be closed. Thereafter petitioners allege they began a
relationship with the Salvation Army in or about 2005.
,. ,
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determination of respondent SCO which resulted in the closing of petitioners ' home as a
foster care home is denied and the petition is hereby dismissed.
Motion by respondent SCO to dismiss the proceeding on the grounds that petitioners
have failed to join a necessary party is denied as moot. In any event , the Nassau County
Department of Social Service is not an indispensable par to this proceeding. This is not
a situation in which complete relief cannot be accorded the parties to this action in the
absence of Nassau County Department of Social Services or in which said Department
may be inequitably affected by judgment rendered. CPLR 1001. The dispute at issue
pursuant to its statutory and regulat ry
involves the decision rendered by respondent
sca
authority in which the Department attests it played no part.
This constitutes the Order of the Court.
Dated
ENTERED
SEP 19 2011
NASSAU COUNTY
COUNTY CLERK' S OFFICE
