In re John M. , 71 A.D.2d 144 ( 1979 )


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  • Herlihy, J. (dissenting).

    First, the proceeding should be put in proper perspective. It was the "Application * * * for Approval of an Instrument [voluntary placement agreement]” between the guardian of John and the Social Services Commissioner (commissioner). Significant to the present controversy is that part of the order which states: "I [the guardian] further understand that if the child remains in foster care for 18 months, a petition will be filed with the Family Court to review the circumstances of the child’s placement and determine the plans for his future care.”

    Thus, the proceeding was ended for 18 months unless, of course, some extraordinary circumstances required a different time schedule. (Social Services Law, § 358-a, subd [7]; § 392.)

    The Family Court, however, and this is the core of the present controversy, stated in its order, "in no event should the child be returned to the care of * * * [his guardian] without the concurrence of the Law Guardian”, and a Law Guardian was appointed.

    *149The commissioner objected, stating that this was a usurpation of his authority and an unnecessary and unwanted intrusion of his responsibility.

    It should be noted that Law Guardians are appointed to protect the infant in any proceeding. Nowhere are they given continuing or concurrent jurisdiction with the commissioner and to permit such action might readily lead to a controversy between the Law Guardian and the commissioner which would not be in the best interests of the infant.

    I cannot agree with the statement in the majority opinion that Law Guardians are appointed "to protect a child’s bests interest during the period of its foster care”, and section 241 of the Family Court Act relied upon does not so state. (Cf. Social Services Law, § 358-a, subd [6].) Of course, in any further proceeding a Law Guardian may be appointed and in fairness to the court, I think that was what was intended. In the colloquy just prior to the termination of the hearing the court stated, "I am going to appoint a Law Guardian to represent you in the future proceedings”. If that is what the order stated, there would be no controversy.

    The responsibility of the commissioner was stated very recently by Chief Judge Cooke in Matter of Leon RR (48 NY2d 117, 126): "[The commissioner] must at once serve as the guardian of the best interests of the child”. The limited function of the Family Court is clearly specified in subdivisions (3) and (8) of section 358-a of the Social Services Law, dealing respectively with "Disposition of petition” and "Appealable orders”.

    It appears to me that the semantics controversy might well have been settled between the court and the commissioner without the expense of this time consuming appeal, but the time of decision being at hand, the order should be modified by deleting therefrom as much as provides that: "In no event should the child be returned to the care of * * * [his guardian] without the concurrence of the Law Guardian”, and, as so modified, affirmed.

    Sweeney and Kane, JJ., concur with Greenblott, J. P.; Mikoll and Herlihy, JJ., dissent and vote to modify in separate opinions.

    Order affirmed, without costs.

Document Info

Citation Numbers: 71 A.D.2d 144

Judges: Greenblott, Herlihy, Mikoll

Filed Date: 12/6/1979

Precedential Status: Precedential

Modified Date: 1/12/2022