By court order, the complainants, who are foster parents, seek the return of a four year old child who was placed with them for prospective adoption by the county’s department of social services, to whom the natural parents had surrendered the child custody.
A New York Family Lawyer said the child was placed with them after the complainants had been approved as adoptive parents following an investigation and observation over a protracted period. The child remained in their care under periodic supervision and review by a caseworker, until he was removed.
The removal of the child followed an investigation of an incident and was reported to the department. The reported incident involved an alleged severe beating of the child by the foster mother, who allegedly had inflicted massive bruises and welts on the child’s back, buttocks and thigh area. A caseworker investigated the report and the caseworker, who had been supervising the child’s guardianship, also investigated it the following day.
A New York Child Custody Lawyer said that according to the reports of the caseworkers, the decision of the removal of the child’s custody from the complainants was made and implemented before the investigation initiated by the department of social services had been completed.
In removing the child, the department of social services also made known the withdrawal of its consent to the adoption of the child by the complainants, and indicated that it would not under any situational consent to the adoption, and presumably of any other child by the complainants.
A Long Island Family Lawyer said the court then conducted a hearing and issued a memorandum decision. After reviewing all the evidence, the court in its memorandum stated that the permanent removal of the child based on the episode alone was an excessive reaction by the department of social services, and exceeded the bounds of reasonableness.
The court also addressed itself to the question of the validity of the department of social services’ affirmed intention to continually withhold its consent for the adoption of the child by the complainants.
A Long Island Child Custody Lawyer said that after reviewing all of the testimony and other evidence presented at the hearing, the court in its memorandum stated that the department of social services’ decision to withhold their consent to the adoption was based on certain inferences drawn by, and certain feelings of various agents of the department of social services, and that the feelings and inferences may not have a factual basis.
Sources revealed that before making a determination in the proceeding, as to the long term status of the child, the court directed that a fair hearing be held pursuant to the law to review the county’s department of social services’ decision to permanently remove the child from the foster home and to withdraw its consent to the adoption of the child.
A fair hearing was thereafter held. Afterward, the state’s department of social services affirmed the county’s department of social services’ decision to remove the child from the foster home, and to withhold its consent to adoption of the child by the foster parents. From then on, the court received a copy of the decision of the state’s department of social services and a stenographic transcript of the fair hearing.
Subsequently, all of the interested parties appeared in court to make their final arguments regarding the ultimate disposition of the proceeding.
Based on records, the law provides that when any child shall have been placed in an institution or in a family home by a commissioner of public welfare or a city public welfare officer, the commissioner or city public welfare officer may remove such child from such institution or family home and make such disposition of such child as is provided by law and any person aggrieved by such decision of the commissioner of public welfare or city welfare officer may appeal to the department, which upon receipt of the appeal shall review the case, shall give the person making the appeal an opportunity for a fair hearing thereon and within thirty days render its decision. Moreover, the department may also, on its own motions, review any such decision made by the public welfare official. The department may make such additional investigation as it may consider necessary. Further, all decisions of the department shall be binding upon the public welfare district involved and shall be complied with by the public welfare officials thereof.
However, the court avers that the said law is not the exclusive remedy to which a foster parent is relegated when an agency removes a child from a foster home. The court cited a previous related case wherein it shows that it has long been held that statutes granting the optional power to authorized agencies to remove children from homes where they are placed or boarded do not and cannot affect the equitable powers of the court to arrange for custody with a view to the best interests of the child.
Subsequently, the court is of the view that they may proceed to make a final determination in the matter. Moreover, it is noted that the fair hearing conducted was completed pursuant to the directive of the court and not by virtue of any act of the distressed complainants and that the purpose of the fair hearing was to present any additional facts which could help the court in its determination.
At all times, and particularly in its memorandum decision, the court made it clear that it had reserved the right, and was prepared, to make the ultimate determination of the issues raised in the proceeding, after the fair hearing was concluded.
The court turns to the merits of the proceeding and reviewed the stenographic transcript of the fair hearing, and the decision rendered thereafter by the state’s department of social services.
It is also clear from a review of the said documents that no new facts or evidence was submitted at the fair hearing which would change the initial impressions of the court contained in its memorandum decision. Indeed, at the oral argument of the, none of the interested parties contended that any significantly new evidence had been presented at the fair hearing.
For that reason, the court holds that the decision of the county’s department of social services to remove the child from the foster home and to withhold its consent to the adoption of the child by the complainants was unwarranted on the record. Moreover, the court is of the view that it has the power to review the department of social services’ refusal to consent to the adoption contemplated by the complainants. It is also the court’s holding that the department’s refusal was unwarranted under the circumstances presented.
Consequently, the court order was sustained and the child is directed to be returned to the complainant’s custody. In addition, the adoption proceeding instituted may proceed.
In view of the fact that the child has been away from the foster home for approximately ten months, the department of social services is also directed by the court to implement appropriate steps to insure that the transition back to the foster home to made gradually and be preceded by adequate preparation of the child.
The court further directs that the department of social services implement a schedule of visitation between the child and the complainants during the course of the appellate review.
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