In a child neglect proceeding brought pursuant to Family Court Act article 10, the parties stipulated to have the Nassau County Department of Probation investigate the underlying circumstances relating to the alleged child neglect and to thereafter issue a report, including its recommendations. The parties further agreed to allow the court to use the Probation Department’s report “to aid it in rendering a decision” in the matter.
The Probation Department, which was not a party to the stipulation, produced a report which did not, however, contain any recommendations. By order dated April 30, 1984, then Family Court Judge PC, before whom the proceeding was pending, directed the Probation Department to make a definite recommendation. When the Probation Department informed Judge PC that it did not consider it appropriate for it to make recommendations prior to the court’s making of a finding of neglect, Judge PC reiterated her order. The Probation Department thereupon commenced the instant proceeding in the Supreme Court to annul Judge PC’ order, to prohibit its enforcement, and to obtain a declaration that Family Court Act §§ 1047 and 1048 preclude it from furnishing reports to the Family Court prior to completion of a fact-finding hearing. Judge PC cross-moved to dismiss the petition, inter alia, on the ground that a CPLR article 78 proceeding in the nature of prohibition is not available to obtain the relief sought.
Initially, appellant (Judge PC) raises the question as to whether a CPLR article 78 proceeding is the appropriate vehicle to challenge the Family Court’s direction since prohibition is an “extraordinary remedy” that is available against a court only when it acts without jurisdiction or exceeds its authorized powers. Purported errors of law, which are not properly reviewable by a CPLR article 78 proceeding in the nature of prohibition, are often incorrectly asserted to have been made in excess of jurisdiction
We need not, however, address the issue since we find that the additional relief requested by the Probation Department in its petition–i.e., a declaration that Family Court Act §§ 1047 and 1048 preclude it from furnishing reports to the Family Court prior to completion of the fact-finding hearing–may be ruled upon by converting the proceeding to an action for a declaratory judgment. We deem that to be the appropriate course in this case and accordingly exercise our discretion pursuant to CPLR 103(c) to convert the proceeding to a declaratory judgment action and reach the merits of the dispute between the parties with respect to the impact of Family Court Act § 1047(b).
Family Court Act §§ 255 and 1038 and Social Services Law § 422(4)(e) give the Family Court access to a broad range of documents and reports prepared by agencies concerned with the protection and custody of children. The Family Court may order an agency to render such assistance as shall be within its legal authority to render. Family Ct. Act § 1047 accords a different treatment, however, to one specific kind of report–that which is prepared by the Department of Probation to aid the court in making an order of disposition. The statute specifically provides that reports may not be furnished to the court prior to the completion of a fact-finding hearing, but may be used in a dispositional hearing.
This provision is designed to enable the Family Court to decide the issue of neglect in the first instance, before it receives specific dispositional recommendations that presuppose the existence of neglect. While the wide availability of other reports may render less significant this provision and there may be persuasive policy reasons to make the Probation Department’s recommendations available at an earlier stage. Therefore, absent an expression of legislative intent to the contrary, we find that the Family Court misinterpreted the language of the statute and we declare that the Probation Department is precluded by Family Court Act § 1047(b) from furnishing the Family Court with such report in a neglect proceeding prior to the completion of the fact-finding hearing.
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