In re D. Children , 456 N.Y.S.2d 1002 ( 1982 )

Doerr, J. (dissenting).

The narrow question I see presented in these appeals is whether Family Court has authority to appoint a guardian ad litem to represent children under section 358-a of the Social Services Law. The majority hold that the court had no legal authority to do so because the proceeding had “terminated”. I respectfully disagree on this question of law.

While one particular judicial proceeding has ended, i.e., the court approval of the voluntary transfer petitions, by no means has the entire proceeding been concluded. The children are still in foster care and must return to court when their parents petition for their return (Social Services Law, § 358-a, subd [7]) or after they have remained in foster care for 18 months (Social Services Law, § 392, subd 2, par [a]), or possibly sooner if a parental termination proceeding is deemed appropriate before then (Social Services Law, § 384-b). Therefore, in my view, we should look at the proceeding from the children’s point of view; to them the matter remains unresolved. I cannot agree with the implicit suggestion that the children would be entitled to have a guardian ad litem at the time of the initial placement and then again after 18 months, but not in the meantime.

The majority rely principally on Matter of John M. (51 NY2d 999, revg on dissent below 71 AD2d 144, 148-149). In John M. the dissenting Justice noted that Law Guardians are appointed only to represent an infant in a proceeding, thus implying that the appointment of a Law Guardian terminates between court appearances. The majority apply this rationale to a guardian ad litem as well, but in my view this construction misapprehends the nature of the distinction between a Law Guardian and a guardian ad litem.

Law Guardians, who must be attorneys and compensated for their services, are provided for by sections 241 through 249 of the Family Court Act. The principal function of Law Guardians is to provide the assistance of counsel to minors to help them protect their interests and express their wishes to the court (Family Ct Act, § 241). A guardian ad litem, on the other hand, need not be an attorney and may be “[a]ny adult person who is capable of protecting the interests of the ward and has no conflict of interest” (Siegel, New York Practice, § 198; see, also, 21 Carmody-Wait 2d, § 124:27). The authority for the court in which an action is triable to appoint a guardian ad litem at any stage of the proceeding is found in CPLR 1202. CPLR provisions apply to all courts of the State unless there is an inconsistent statute (CPLR 101). I perceive no inconsistency between the provisions of the Family Court Act with respect to Law Guardians and the CPLR with respect to guardians ad litem. Although the functions of the two overlap to some extent, the primary difference is that Law Guardians must be compensated, and where children are placed in foster care for protracted periods of time before the matter returns to court it is not economically feasible to employ someone for the sole purpose of looking after their best interests over that period when someone else, without compensation, can perform the same task.

While a Law Guardian, as an attorney, has virtually nothing to do between court appearances, the guardian ad litem does have a role, albeit a limited one. The guardian ad litem exists not only to express the child’s wishes to the court, but also to follow the case so that the child will not “fall through the cracks” of foster care. Although the Department of Social Services is required to bring a foster care review petition every 18 months, the reported decisions of this State are fraught with examples in which Social Services Departments, overburdened with huge caseloads and frequently understaffed, have, failed or been unable to comply with their statutory duties to commence timely foster care review petitions (see, e.g., Matter of Wayne T.D., 104 Misc 2d 314 [noting that the review petition was not brought for over two years following placement]; see, also, Matter of Kim W., 111 Misc 2d 706 [in which two children who had lived with a foster family almost since birth were taken away at ages 8 and 9 from the foster family, who wanted to adopt them, and placed for adoption in Oregon, a result which occurred largely because there had been no review petition]; see Matter of Emily R., 112 Misc 2d 71 [in which orphans and newborn babies were left needlessly in foster care, even though they could have easily been freed for adoption; in the latter case the matter was brought to the court’s attention by CASA]). Thus, the guardian ad litem acts, to some extent, as a “watchdog” for the child. The guardian ad litem is the child’s spokesman who can remind Social Services that 18 months are about to expire, or that even though 18 months have not yet expired perhaps some other step, such as freeing the child for adoption, should be taken sooner. The guardian ad litem can also suggest to the foster parent that he or she bring a review petition as permitted by statute (Social Services Law, § 392, subd 2, par [c]). Although the Social Services Law gives the child no standing to file a review petition himself, the guardian ad litem, acting for the child, could notify Family Court that 18 months are up and then the court, which has continuing jurisdiction over children who have been in foster care for 18 months, can reconsider the appropriateness of foster care upon its own motion (Social Services Law, § 392, subd 10). Alternatively, if the department timely carries out its statutory function, the guardian ad litem would simply be there to express the child’s point of view, but at least the guardian ad litem would already be in place and familiar with the facts, thus obviating any further delay required if a new guardian comes into the case at a later stage.

Finally, I apprehend no usurpation of the commissioner’s authority by reason of the order directing the Department of Social Services to “cooperate fully” with the guardian ad litem. The court here did nothing more than appoint a guardian ad litem to “[a]ssist the court in giving said children and their family such care, protection and assistance as will best enhance their welfare” and direct that the caseworker or caseworkers co-operate with the guardian ad litem. The guardian ad litem has been given no supervisory or decision-making authority (cf. Matter of John M., 51 NY2d 999, revg on dissenting opn of Herlihy, J., 71 AD2d 144, 148-149). Her role is simply to aid and assist the children wherever possible. The primary responsibility for providing the care of dependent children rests with the Commissioner of Social Services. The ultimate responsibility to determine what is in the child’s best interests always remains with the court, and neither the commissioner, a guardian ad litem, or a Law Guardian has any role in this determination, except advisory.

While the phrase employed by the court in its order (“to cooperate fully”) might be criticized for vagueness, such language merely tracks the wording contained in section 255 of the Family Court Act which authorizes Family Court to order any agency “to render such information, assistance and cooperation * * * as may be required to further the objects of this act” (Family Ct Act, § 255). I interpret the order to mean that such information be made available as is necessary for the guardian ad litem to fulfill her function. This could well be limited to the names, addresses and telephone numbers of the foster parents as well as the natural parents, but it in no way implies that the guardian can give, nor is the department required to accept, advice or instructions from the guardian as to how to run its. business.

Dillon, P. J., Hancock, Jr., and Denman, JJ., concur with Boomer, J.; Doerr, J., dissents and votes to affirm in an opinion.

Order appointing guardian ad litem vacated, without costs.

Order denying the motion to vacate the appointment of the guardian ad litem reversed, without costs, and motion granted, in accordance with opinion by Boomer, J.