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Surrogate's Court, Broome County, New York.


Decided: October 26, 2009

Gary W. Farneti, Esq., Levene, Gouldin & Thompson, LLP, Carol A. Cocchiola, Esq., Assistant Attorney General for Broome Developmental Center, Office of Attorney General, Binghamton, Attorney for Petitioner. James M. Hayes, Esq., Hinman, Howard & Kattell, Laura Bevacqua, Esq., Mental Hygiene Legal Service, Binghamton, Guardian ad litem.

Petitioner, by Order to Show Cause, as Article 17-A guardian of her brother, Leo, requests that the Broome Developmental Center (BDC) be enjoined as follows:  1) to give her unfettered access to her brother anywhere in the BDC facility, 2) maintain one-on-one monitoring for Leo, 3) not awaken Leo and force him to get out of bed until he is ready, and 4) that Susan W. be removed from the unit at BDC where Leo resides.   The action, therefore, is one for mandamus to compel.

Petitioner argues that SCPA § 1758 gives the Court authority to compel BDC to do the specified acts because the Court has continuing “general jurisdiction over the mentally retarded or developmentally disabled person ․” Respondent argues, first, that petitioner has not exhausted her administrative remedies under 14 NYCRR 633.12 and second, that the Court cannot interfere in the clinical treatment decisions made by BDC for Leo.

MHL § 33.03 and 29.13 require that each patient in a facility receive care and treatment and that the director of the facility shall require a written treatment plan for each patient.  14 NYCRR § 633.12 sets forth the system by which a patient or his guardian may object to the treatment plan.

The remedies that petitioner seeks relate to the plan for treatment of Leo's disorders.   In effect, she asks the Court, acting under SCPA § 1758, to direct BDC, by injunction, how to treat Leo's disorders, who shall treat him and when and where she shall be allowed to visit Leo. Such a petition, under SCPA § 1758 to direct and compel the method of treatment, is one of first impression.

In an analogous situation, the Court of Appeals has held that Family Court, acting under § 255 of the Family Court Act, does not have authority to impose upon the Department of Social Services and the Probation Department a plan for supervision of persons in need of supervision (PINS), Matter of Lorie C., 49 N.Y.2d 161, 424 N.Y.S.2d 395, 400 N.E.2d 336 (1980);  Matter of Ronald W., 25 A.D.3d 4, 801 N.Y.S.2d 312 (1st Dept., 2005). § 255 provides that Family Court “may order any county, municipal and school district officer ․ to render such assistance and cooperation ․ to determine the appropriate special services or programs necessary to meet the needs of a handicapped child, but shall not require the provisions of a specific service or program ․” The Court of Appeals held that “the courts do not normally have overview of the lawful acts of appointive and elective officials involving questions of judgment, discretion, allocation of resources and priorities.”   Matter Lorie C., supra.

 As stated in Matter of Ronald W., supra at 11, 801 N.Y.S.2d 312, “A court can only compel an action by an administrative agency where it is ordering the performance of a ministerial, non-discretionary act.”   Accord, Matter of Savastano v. Prevost, 66 N.Y.2d 47, 495 N.Y.S.2d 6, 485 N.E.2d 213 (1985).   In Matter of Chenier v. Richard W., 82 N.Y.2d 830, 606 N.Y.S.2d 143, 626 N.E.2d 928 (1993), the Supreme Court imposed treatment-related provisions in an order directing the retention of a patient in a psychiatric hospital pursuant to MHL § 9.13. The Court of Appeals held, “the court did not have authority to impose treatment related conditions as part of its retention order.”   In Robert C. v. Wack, 167 Misc.2d 677 at 685, 635 N.Y.S.2d 426 (Sup.Ct., New York Co., 1995) the court said, “While the Supreme Court has broad discretion to protect and supervise treatment of committed mental patients ․ it may not micromanage patient care”.

 The continuing jurisdiction of the Surrogate over mentally retarded and developmentally disabled persons under SCPA § 1758 is similar to Family Court's powers under F.C.A. § 255 and Supreme Court's powers under MHL § 9.13. Nevertheless, the Court of Appeals has clearly held that courts do not have authority to interfere in the discretionary acts of administrative agencies, which includes interference in treatment plans developed by the administrative agency charged with the care and treatment of mentally ill, mentally retarded or developmentally disabled persons.   Similarly, there is no reason why the Surrogate, under SCPA § 1758, should have the authority to direct BDC's treatment plan.

 The system for review of objections to a treatment plan under 14 NYCRR § 633.12 includes informal objection followed by written objection, a hearing, and appeal to the Commissioner of Mental Health.   After the final decision of the Commissioner, an Article 78 proceeding may be brought.   At the oral argument, the attorney for petitioner admitted there had been no written objection or hearing, only an attempt at informal resolution.   Thus, the administrative remedies have not been exhausted.   The fact that petitioner seeks mandamus to compel action by BDC does not obviate the requirement for exhaustion of the administrative remedies, absent a showing of irreparable injury.  Martinez v. N.Y. City Campaign Finance Board, 36 A.D.3d 544, 829 N.Y.S.2d 55 (1st Dept., 2007);  DiBlasio v. Novello, 28 A.D.3d 339, 814 N.Y.S.2d 51 (1st Dept., 2006).

Petitioner's factual allegations about Leo's injuries in her affidavits are disputed by the affidavit of Deputy Director Linda Smith, R.N. Leo admittedly has a seizure disorder, which could result in his injuries.   There has been no proof the seizures did not cause any injuries he may have suffered.   Thus, the allegations do not show irreparable injury.   Rather, since there has been no administrative hearing, there are merely disputed facts to be resolved at such a hearing.   The administrative remedies have not been exhausted in this case.

For the foregoing reasons, the petition is denied.   Submit order accordingly.