The opinion of the court was delivered by: GAGLIARDI
At issue in this action is the constitutionality of a New York statute, N.Y. Social Services Law § 358-a (McKinney Supp. 1980-1981), which requires that parents of children in need of treatment and supervision outside their homes relinquish custody of their children to the state as a condition of admission of the children to residential care facilities at state expense. Plaintiffs, certified as the class of New York children whose parents cannot afford the cost of necessary special services outside their homes,
seek a declaratory judgment that the statutory scheme on its face and as applied violates plaintiffs' rights under the First, Ninth and Fourteenth Amendments to the United States Constitution, Title IV of the Social Security Act, 42 U.S.C. § 601 et seq., and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Both plaintiffs and the defendant New York State and New York City officials
have moved for partial summary judgment.
The statutory process challenged by plaintiffs is activated when a parent who finds himself unable to care for or supervise a problem child at home
seeks to place the child in a residential treatment center at state expense. The process by which a parent relinquishes care and custody of his child to the state is two-fold: first, the parent and a local social services official must enter into a written agreement pursuant to N.Y. Social Services Law § 384-a (McKinney Supp. 1981-1982) transferring care and custody to the social services agency; and second, the social services official must initiate judicial proceedings to obtain approval of the transfer instrument pursuant to § 358-a.
Section 384-a(2)(a) provides that placement of the child shall be under the written terms and conditions mutually agreed upon by parent and social services representative. If the transfer instrument designates return of the child for a certain date or event and the agency fails to return the child at that time, or if the parent requests that the child be returned prior to the specified date and the agency refuses or fails to act, the parent's remedy is to petition the family court or to seek a writ of habeas corpus in the supreme court. If the instrument does not specify a return date, the parent may request return at any time and the agency must then either return the child within twenty days or seek a court order within that time to retain care and custody. See §§ 358-a(7) and 384-a(2)(a). The instrument must advise the parent in lay terms inter alia: that a return date may be specified by the instrument; that the parent has the right to supportive services, to visit the child, and to have the child returned in accordance with the terms of the instrument; that the parent has the right at any time to consult an attorney; and that the parent has the obligation to visit the child and plan for the child's future. § 384-a(2)(c). Since the 1976 amendments to the statute, the instrument may not include a waiver by the parent of notice of the family court proceedings for approval of the instrument. § 358-a(4). Although the parent may waive a family court hearing, such waiver must be in an instrument separate from that transferring custody if the transfer is pursuant to § 384-a. § 358-a(5). The transfer instrument ("Form W-864") presented to the parents of the named plaintiffs in this action contained waivers of notice and hearing now void under the amended statute and also contained a statement that "(placement) is required because I (we) am (are) unable to make adequate provision for the support, maintenance and supervision of the child in his (her) own home or with relatives or friends."
Upon execution of the transfer instrument, if the social services official believes the child is likely to remain in state care in excess of thirty days, the official must petition the local family court judge to approve the instrument. If the judge is satisfied that the parent executed the instrument knowingly and voluntarily and because he would be "unable to make adequate provision for the care, maintenance and supervision" of the child in his home, and that the requirements of § 384-a, if applicable, have been satisfied, and if the judge then determines that "the best interest and welfare of the child would be promoted by removal of the child from such home, and that it would be contrary to the welfare of such child for him to continue in such home," the judge "shall thereupon grant the petition and approve such instrument and the transfer of the ... care and custody of such child to such social services official...." § 358-a(3). The statute further provides that any order of a family court judge granting or denying a petition for transfer or return of custody shall be appealable. § 358-a(8).
Once the transfer instrument is executed and the child placed in a residential facility, the parent need not be consulted regarding changes in the method or location of treatment. If the parent opposes any decision made by the social services agency, the parent's only remedy, beyond complaining to the social services official, is to petition the family court or supreme court. Plaintiffs assert, and defendants have not submitted affidavits otherwise contending, that an unspecified number of parents are deterred from placing their children in residential treatment centers by the prerequisite that custody of their children be transferred to the state.
For the purposes of these motions for summary judgment, the allegations particular to the two named plaintiffs need not be set forth. Plaintiffs do not contend that defendants deviated substantially from their statutory mandate.
It is well established that when a statute is challenged on both statutory and constitutional bases, the court must consider the statutory challenge before deciding the constitutional issue. See, e.g., Harris v. McRae, 448 U.S. 297, 306-07, 100 S. Ct. 2671, 2683, 65 L. Ed. 2d 784 (1980); New York City Transit Auth. v. Beazer, 440 U.S. 568, 582, 99 S. Ct. 1355, 1364, 59 L. Ed. 2d 587 (1979). The court therefore first addresses plaintiffs' claims under the Social Security Act and the Rehabilitation Act of 1973.
Plaintiffs contend that the New York statutory scheme violates plaintiffs' rights under Title IV of the federal Social Security Act, 42 U.S.C. § 601 et seq., by conditioning the receipt of needed services on transfer of child custody. Plaintiffs' claim is based upon the broad scope and intent of Title IV to provide relief to needy families through the Aid to Families with Dependent Children ("AFDC") program. In support of their contention that defendants are in violation of Title IV, plaintiffs cite several statements in the legislative history as well as particular provisions of the Social Security Act, e.g., 42 U.S.C. §§ 601, 606, 608(f), which confirm the undeniable proposition that a principal purpose of the Social Security Act is "to maintain and strengthen family life." 42 U.S.C. § 601. Plaintiffs also refer the court to certain other statutes such as the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 672(f), and the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., as evidence of Congressional concern for the stability and permanence of familial relations. See also Ramos v. Montgomery, 313 F. Supp. 1179, 1181 (S.D.Cal.1970), aff'd, 400 U.S. 1003, 91 S. Ct. 572, 27 L. Ed. 2d 618 (1971). It is, of course, uncontested that once a state elects, as New York has elected, to participate in the AFDC program it must comply with applicable federal law and regulations. Philbrook v. Glodgett, 421 U.S. 707, 95 S. Ct. 1893, 44 L. Ed. 2d 525 (1975); Hagans v. Lavine, 415 U.S. 528, 530, 94 S. Ct. 1372, 1375, 39 L. Ed. 2d 577 (1974). Broad professions of Congressional support for the integrity of family life do not, however, establish that plaintiffs have a statutory entitlement to placement in residential facilities at state expense without the prerequisite of transfer of child custody. See Black v. Beame, 550 F.2d 815, 818 (2d Cir. 1977); Child v. Beame, 412 F. Supp. 593, 604 (S.D.N.Y.1976). Plaintiffs' claim under the federal Social Security Act is accordingly dismissed.
Plaintiffs also claim that New York's requirement that custody be transferred prior to the receipt of needed special services violates plaintiffs' rights as handicapped children under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the regulations promulgated thereunder. Section 504 provides in part: "No otherwise qualified handicapped individual .. shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...."
The regulations promulgated under the Act further provide that:
In providing health, welfare, or other social services or benefits, a recipient may not, on the basis of handicap:
(2) Afford a qualified handicapped person an opportunity to receive benefits or services that is not equal to that ...