People Ex Rel. Choolokian v. Mission of the Immaculate Virgin

Section 383 of the Social Welfare Law provides that the parent of a child committed to an institution may regain its custody by obtaining either the "consent of the court, public board, commission, or official responsible for the commitment of such child, OR * * * an order of a court or judicial officer of competent jurisdiction, determining that the interest of such child will be promoted thereby and that such parent is fit, competent and able" to care for it. (Emphasis supplied.) In the case before us, the father, pursuing the first alternative, sought the consent of the Welfare Commissioner of the City of New York, the official responsible for his children's commitment.

There is no doubt in my mind that consent by the committing officer constitutes the determination of an administrative agency. The Legislature recognized that the body "responsible" for the child's commitment was peculiarly competent to pass upon the question whether the child should be returned to its parent or retained by the institution to which it had been committed. Once having gained that consent, a father is not required to vindicate his right anew in our courts. The administrative determination must stand unless a court justifiably stamps it unreasonable and capricious. (See, e.g., Matter of Park EastLand Corp. v. Finkelstein, 299 N.Y. 70, 75; Matter of Fiore v. O'Connell, 297 N.Y. 260, 262; Matter of Marburg v. Cole,286 N.Y. 202, 214.)

If, then, it here appeared that the Commissioner of Welfare had granted the requisite statutory consent, I would be impelled to vote for reversal. I concur in the decision to modify only because I perceive in the record some basis for the finding made by the court at Special Term that that consent had not been given.

LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and BROMLEY, JJ., concur in Per Curiam opinion; FULD, J., concurs in separate opinion.

Ordered accordingly. [See 300 N.Y. 622.]