In re Naima C.

39 A.D.2d 964, 333 N.Y.S.2d 630, 1972 N.Y. App. Div. LEXIS 4200

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1972
• Status: Published

Opinion

In a child neglect proceeding, the Bew York City Community School Board Bo. 15 and its Superintendent appeal from an order of the Family Court, Kings County, entered March 22, 1972, which directs them to admit respondents’ two children to a school outside of the district in which respondents reside. Order reversed, on the law, without costs, and proceeding dismissed. This proceeding was instituted by a District Supervising Attendance Officer of School District Bo. 10 of the City of Bew York under article 10 (Child Protective Proceedings) of the Family Court Act, to determine that said two children were neglected children, because of the alleged failure of respondents to supply their children with adequate education as required by the Education Law. After considering all the testimony and evidence, the Family Court found that the children were not “ neglected ” within the meaning of article 10 and that, in fact, the parents were giving the children a qualified quality education at home. The Family Court’s decision states that dismissal of the petition is mandated. We concur therewith. The Family Court went further, however, and issued the order appealed from, which directs appellants to enroll the children at a school outside of the district where respondents reside, which school, incidentally, was the one which respondents want their children to attend. In so directing, the Family Court exceeded its jurisdiction. The section of the Family Court Act under which it purported to act, section 255, gives it no such power. What the court in effect did was to convert the neglect proceeding into a CPLR article 78 proceeding in the nature of mandamus. Such a proceeding can only be brought in the Supreme Court (CPLR 7804, subd. [b]). Hopkins, Acting P. J., Munder, Shapiro, Christ and Brennan, JJ., concur.