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Matter of Tiffany A.
Family Court, Queens County.
Jan 11, 2000
granted and maintained for 4½ years, may continue despite the recent lapsed placement herein. [10] The court, based upon this denial of the respondent mother's motion, need not reach the intervenors' contingent application seeking leave to file a petition for custody of the subject child. [11] [1] Since September 1995, during the pendency of the original dispositional hearing, the subject child has resided with the respondent mother between Monday morning and Friday afternoon each week, and with the intervenors from Friday afternoon until Monday morning each week. When the Appellate Division remanded the matter to this court for a new dispositional hearing, this court denied a motion made by the intervenors to essentially reverse the arrangement, i.e., to permit the child to reside with the intervenors during the week and with the respondent mother on weekends. At that time, this court opted for maintaining stability in the life of a young child who had already experienced a great deal of turmoil, and denied that application. The status quo has been thereupon preserved during the pendency of this second dispositional hearing. [2] It is not necessary for the court to order such an investigation in the instant matter. ACS is thoroughly familiar with all of the relevant facts and circumstances, having supervised this case for seven years. ACS has indeed already completed such an "investigation" over that time, and has reached a determination, in the exercise of its executive discretion, that no facts currently exist to justify the filing of a de novo child neglect petition. This position is unambiguously set forth in the "sixty day closing report" of October 7, 1999 that is attached to the Commissioner's affirmation in opposition to the Law Guardian's motion. [3] The legislative history which underlies this section clearly anticipates that the "person" seeking to file such a petition" at the court's direction" will first make application to the court for that instruction. There is no expectation in that legislative history that a third party would, or could, make an application to the court to compel such a "person" to bring the petition. Even if, assuming arguendo, the court is empowered under Family Court Act & sect; 1032 (b) to order ACS to file a de novo child protective petition, no authority exists for the court to compel ACS to proceed on that same petition, and indeed ACS has already decided that the requisite proof to support such a petition is lacking. [4] If this court were to construe Family Court Act § 255 as granting such a supervisory power to the Family Court, as it necessarily must if the Law Guardian's motion is to be granted, it would thereupon raise substantial concerns regarding its constitutionality. It is a settled rule of statutory construction that in precisely such a situation, a statute must be construed as to avoid doubts regarding its constitutionality. (McKinney's Cons Laws of NY, Book 1, Statutes § 150.) [5] For example, the Family Court has the authority to order ACS to investigate specific allegations of child abuse or neglect even in the absence of Family Court Act § 1034, since ACS is statutorily compelled to undertake such an investigation. [6] The myriad factors that must be weighed by a responsible executive when reaching an informed decision, including but not limited to specific factual information, the source(s) thereof, and the appropriate weight to be afforded to those source(s), cannot be meaningfully duplicated in the courtroom, however diligent and thorough a Judge tries to be. This, of course, reflects the wisdom of the founders in organizing the three branches of government, and in recognizing that such responsibility lies in the executive branch in the first instance. [7] A philosophy that encourages Judges to assume an activist role in court proceedings relating to families is gaining national attention. Such judicial activism may properly and responsibly assure that the executive branch carry out its legal obligations. The judiciary must never usurp the executive's authority, however, even in an effort to improve the outcome of a particular case, or class of cases. Judges must always be mindful of the peril of substituting the court's judgment for the executive's discretion. The temptation to do so markedly increases when a court employs a hands-on approach to its case load. It becomes facile to overlook or even to ignore a fundamental tenet of our constitutional framework: the judiciary may not encroach upon the executive prerogative. This principle is inviolate, however honorable the judicial intention and however salutary the desired result. The Family Court remains as always a court of law, subject to all constitutional safeguards, including the separation of powers doctrine. Under our governmental scheme, it is well settled that the judicial branch cannot replace the executive's judgment with its own, so long as the executive has acted lawfully. Only the public may review the efficacy of the executive's exercise of judgment and discretion. The electorate enjoys the exclusive province to express its dissatisfaction with an executive whose performance is found wanting by virtue of exercising that discretion poorly. [8] Parenthetically, the court also is empowered to prevent the executive from undertaking functions that exceed its lawful authority. The preclusion of such ultra vires activity may be directed by a court. Historically, such an order is classified as a writ of prohibition. [9] It is noteworthy that Family Court Act § 1055 (d) does specifically empower the Family Court to direct a "social services official or other duly authorized agency to institute a proceeding to legally free [a] child for adoption," i.e., to initiate a petition to terminate parental rights, if the court first finds "reasonable cause" to do so. In contrasting this section with Family Court Act § 1032 (b), it is clear that such specific statutory direction is not present in the latter section. Under the rules of statutory construction, this court must presume that the Legislature intended to enact that which it enacted, and intended to omit that which it omitted. (McKinney's Cons Laws of NY, Book 1, Statutes § 74.) In any event, Family Court Act § 1055 (d) is arguably of dubious constitutionality, when subjected to the separation of powers analysis detailed previously. It is additionally obvious that even if the Legislature properly granted such authority to the Family Court (to order the filing of a petition to terminate parental rights), it did not concomitantly grant the court the power to order the executive to proceed on such a petition. Such authority is unknown anywhere in the law, as, e.g., a court may not direct a prosecutor as to whether or how to proceed on a criminal matter. The court simply provides the opportunity for the presentation of a case, and may impose appropriate consequences (up to and including possible dismissal of the case) if that opportunity is declined for whatever reason. A Judge may not, however, order a plaintiff/petitioner/prosecutor to go forward on a case which it has decided not to present. [10] This denial of the motion to vacate the intervenor status of the former foster parents also results in maintaining the status quo of the subject child's current living arrangements. The court continues to direct that she reside with the intervenors from Friday afternoon through Monday morning, each week. The court again relies, as parens patriae, on the overriding need to keep this child's life as stable as possible pending the final disposition in this case. Indeed, the court had previously denied an application to expand the intervenors' time with the child, even after the Second Department stated, in reversing the original dispositional order, that upon the record presented in that hearing, it would have terminated the respondent mother's parental rights. The identical concerns which informed the denial of the intervenors' application at that time also underlie the court's instant decision. [11] This application of course, raises an interesting question. On one hand, the law is well settled that foster parents lack standing to file a custody petition. (See, e.g., Matter of New York City Dept. of Social Servs. [Tahira L.], 203 AD2d 575 [2d Dept 1994]; Matter of Rivers v Womack, 178 AD2d 532 [2d Dept 1991]; Katie B. v Miriam H., 116 AD2d 545 [2d Dept 1986]; Matter of Byers v Kirby, 67 AD2d 727 [2d Dept 1979].) On the other hand, the intervenors' legal status is now that of former foster parents, which arguably removes them from coverage by that body of settled law. Indeed, it is arguable that they might be able to at least file a petition seeking guardianship of the subject child. (See, Matter of Dalida P., 204 AD2d 645 [2d Dept 1994] [wherein the Second Department noted that a guardianship proceeding may be brought by" any person" and does not require that the petitioner have a blood or marriage relationship to the child in question].) In any event, given the denial of the respondent mother's motion, it remains a moot issue in the context of the instant matter.
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