Opinion
Argued June 2, 1949
Decided October 20, 1949
Appeal from the Supreme Court, Appellate Division, First Department, LUMBARD, J.
Samuel M. Blinken for appellant. Raymond L. Wise and Margaret K. Udell for American Civil Liberties Union, amicus curiae, in support of appellant's position. Richard K. Gregory for the Human Relations Commission of the Protestant Council of the City of New York and the Prelacy of the Armenian Apostolic Church in America, Inc., amici curiae, in support of appellant's position.
Armenian National Council of America, by Charles A. Vertanes, director, and Oksen Sarian, acting chairman, amicus curiae, in support of appellant's position.
Charles G. Coster for Mission of the Immaculate Virgin, respondent. Joseph V. McKee and Philip G. Reilly for New York Foundling Hospital, respondent.
In these habeas corpus proceedings there was ample evidence to sustain the findings of the trial court, unanimously affirmed by the Appellate Division, that the relator was not fit, competent or able to care for his children and that it would not be to their best interests to be taken by him to Armenia. (See Finlay v. Finlay, 240 N.Y. 429.) The dismissal of the writs of habeas corpus herein should therefore be affirmed, but insofar as the final order below imposed conditions upon relator's right to make further application or seek new writs of habeas corpus, it should be modified so as to eliminate such conditions.
The order of the Appellate Division and the orders of Special Term should be modified in accordance with this opinion, and, as so modified, affirmed.
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 East Land 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.]