Byers v. Kirby , 412 N.Y.S.2d 661 ( 1979 )

— In a habeas corpus proceeding pursuant to subdivision (b) of section 651 of the Family Court Act to determine custody of a foster child, petitioners appeal from an order of the Family Court, Suffolk County, entered March 29,1978, which dismissed the petition. Order affirmed, without costs or disbursements. Petitioners, if they be so advised, may resort to the administrative review provided in 18 NYCRR 431.10 within 30 days after service upon them of a copy of the order to be entered hereon together with notice of entry thereof. (On the argument of the appeal respondents agreed to waive any defense of time limitations set forth in that rule.) Where, pursuant to subdivision 2 of section 383 and section 400 of the Social Services Law and 18 NYCRR 431.10 (formerly 18 NYCRR 450.10), a county department of social services, which had originally placed a child with foster parents, advises the foster parents of its intent to remove the child, the foster parents must pursue their rights administratively and may not resort in the first instance to habeas corpus proceedings pursuant to subdivision (b) of section 651 of the Family Court Act, to prevent removal of the child pendente lite (People ex rel Ninesling v Nassau County Dept, of Social Servs., 46 NY2d 382; Smith v Organization of Foster Families, 431 US 816). Hopkins, J. P., Suozzi, Rabin and Shapiro, JJ., concur.