Opinion
May 7, 1991
Appeal from the Supreme Court, New York County (Carol H. Arber, J.).
This court concurs in the trial court's finding of lack of merit to the petition herein, on both substantive and procedural grounds. The plain meaning of Social Services Law § 400 allows for a fair hearing upon application of the foster parents whenever a child is removed from a foster family home (Smith v Organization of Foster Families, 431 U.S. 816, 831, n 28). Additionally, the petition was untimely (CPLR 217), petitioner-appellant failed to exhaust its administrative remedy of seeking dismissal before the administrative tribunal involved (CPLR 7801; see also, Matter of Schuyler v State Univ., 31 A.D.2d 273), and petitioner-appellant's participation in the hearing it sought to enjoin constituted a waiver of any right to seek enjoinder (see, e.g., Murray v Capozzi, 71 A.D.2d 786).
As petitioner-appellant has no standing to assert any constitutional rights of respondent natural mother (see, Pierce v Society of Sisters, 268 U.S. 510), petitioner-appellant's contention that its concern for the alleged right of the natural mother to receive notice of the subject hearing justifies its petition, fails.
We also find no merit to petitioner-appellant's argument that respondents New York City Department of Social Services and the natural mother should share in payment of any attorneys' fees awarded herein to respondents Warren and Theresa Dade. The Department and the natural mother are not named petitioners, and the only papers filed by them in this matter are their respective Answers to the petition herein, filed by them as named respondents and setting forth their respective positions on the issues which, it is noted, are not opposed in theory to that of petitioner-appellant.
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Smith, JJ.