"Every five or six days a child dies in New York City because of parental abuse or neglect. Some die because they have been left alone. Some are the victims of a parent’s psychotic delusions. Some have had illnesses which have been neglected. Some are killed while in the hands of incompetent baby sitters. Some starve to death. Some die because of safety hazards which should have been corrected. Some are beaten to death.”
This is the grim reality faced by far too many children living today in the City of New York according to the Report of the Public Child Fatality Review Committee headed by former Family Court Judge Nanette Dembitz (the Committee). This expert Committee was appointed in January 1985 by defendant-appellant Commissioner of the New York City Department of Social Services to study and to provide an outside appraisal of the performance of the city’s Department of Social Services (DSS) and, particularly, of Special Services for Children (SSC), the agency responsible for child protective services and preventive services for children and their families in New York City. The Committee reviewed 89 cases in which children had died of suspected parental abuse or neglect during 1985, for the purpose of "detecting any systematic deficiencies in SSC as well as other agencies involved in childcare.” The Committee’s findings were published in a report dated December 23, 1986, a little more than one year after this action was instituted. Although the report of the Commit*180tee is not part of the record herein, I take judicial notice of its findings which are directly relevant to the issues raised by the original plaintiffs-respondents and by plaintiffs-intervenors-respondents.1
This action, brought by a number of mothers with young children who find themselves homeless and destitute, and by several not-for-profit organizations providing services and assistance to children and the homeless, places before this court the record of SSC’s performance in carrying out its statutory duties under Social Services Law, article 6, title 4, Preventive Services for Children and Their Families (§ 409 et seq., the Child Welfare Reform Act of 1979) and article 6, title 6, Child Protective Services (§ 411 et seq., the Child Protective Services Act of 1973).
The common thread running through the allegations of the individual respondents is that they are in need of services to prevent their children from being placed in foster care, but that SSC has failed or refused to provide preventive services to them as mandated by the Social Services Law and the regulations thereunder. The organizational respondents allege that in a substantial number of cases, SSC has failed to commence investigations of abuse or neglect reports within 24 hours, as required by law, leaving over 6,000 children at risk. They further allege that even when investigations are timely commenced, SSC fails to offer appropriate services to the children and their families during the investigation, also as required; fails to provide any real protection to the children; and fails to carry out "even the most rudimentary elements of the 90 day child protection investigation.” These failures, according to respondents, violate New York State Social Services Law and Federal laws under which defendants-appellants are reimbursed for foster care and child welfare programs (Social Security Act tits IV-E [42 USC § 670 et seq.], IVB [42 USC § 620 et seq.]).
While I agree with much of the majority’s opinion, including the finding that the preparation of the child service plan and the provision of mandatory preventive services in accor*181dance with such plan involve the exercise of discretion, I nevertheless conclude, following an analysis of the Social Services Law and the regulations promulgated thereunder, that these acts are but discretionary means to the fulfillment of SSC’s nondiscretionary duty to protect children who are believed to be suffering from abuse or neglect and to provide whatever services are necessary to safeguard such children. While I would affirm the grant of injunctive relief to respondents, I reach that result by a different route from the one taken by the court below and, consequently, I would frame the order differently. I do not agree with the finding below that the 409-e service plan is in the nature of a contract, and I consider this finding unnecessary to the decision to award respondents the declaratory and injunctive relief sought. I find the clear, mandatory directives of the Social Services Law sufficient to warrant such relief.
The Social Services Law establishes a process, which the court may compel appellants to implement and to follow, in order to effectuate the important statutory aims of the Child Welfare Reform Act and the Child Protective Services Act— which are: to protect children who are suffering from abuse or neglect; to safeguard their health and well-being, either in the home or while in foster care; and to make appropriate, reasonable efforts to rehabilitate the family so that the children may remain safely in the home or be returned to it as soon as possible.
The fact that the social services officials must make discretionary determinations at various stages of the child protective investigation and in formulating a rehabilitative plan for the family does not mean that they have the discretion to make no determination; to ignore the statutory process intended to bring information to their attention which would require them to act as directed by law (People ex rel. Francis v Common Council, 78 NY 33 [1879], cited with approval in Klostermann v Cuomo, 61 NY2d 525, 539-540 [1984]). What the majority fails to perceive is the interrelation of the mandatory investigatory process established under the Child Protective Services Act and the discretionary findings preliminary to a determination that preventive services are mandated.
The protective services investigation is intended to reveal information about the family which will enable social services officials to determine whether a child is at risk of foster placement and whether there are services which will eliminate that risk. Indeed, the protective service investigation is *182the sole means available to SSC for establishing what are the conditions in the home and whether there are legal grounds for removing the child to foster care.
If the protective service fails to conduct competent investigations into all reports of suspected abuse or neglect, as required by law, then there will inevitably be children left in homes where their health and well-being are endangered, without any services to protect them or to rehabilitate the family—in other words, without services which are mandated by law. Without thorough, competent investigations by the protective service, there is simply no empirical basis for any of the discretionary decisions SSC is called upon to make in exercising its statutory mandate.
In their motion for summary judgment below and in their briefs on appeal, appellants claim that they have complied with the relevant law and regulations, on a system-wide basis and in their dealings with the individual respondents; that the complaint is unfounded and should be dismissed. The affidavit in support of the motion from the Deputy Administrator in charge of SSC sets forth appellants’ analysis of the statutory and regulatory framework for the protective and preventive services. The supporting affidavits of SSC’s Director of Court Services detail the steps taken by the social services officials in response to the problems of the original parties plaintiif and the intervenors.
In reviewing the case records for the intervenor families, I find that they fully support the conclusion that the children in the Williams family were at risk of foster placement. As to the Lee family, the record raises questions about the adequacy of the protective service investigation on which SSC based its determination that the report of suspected neglect was unfounded. Moreover, upon searching the record and reviewing the law, I find that appellants have failed to comply with the mandatory directives of Social Services Law §§ 423 and 424 in all cases, due to an erroneous policy promulgated by defendant Commissioner of the New York State Department of Social Services who is not a party to this appeal.
The State defendants have taken the position that the grant of injunctive relief against the State would be inappropriate because it has neither the statutory nor regulatory authority to perform the duties delegated to the local child protective and preventive services. However, defendant Commissioner promulgates the regulations which guide these local services *183in the performance of their duties and which govern the reimbursement of funds to the local agencies (Social Services Law §§ 409-b, 427). Inasmuch as these regulations impede the local protective service in carrying out its statutory duties, the additional relief specified herein is both necessary and proper. Therefore, I conclude that respondents are also entitled to certain declaratory and injunctive relief not specifically sought below, as specified herein.
The majority takes strong exception both to the reasoning underlying my conclusion that additional relief is warranted and to the propriety of deciding an issue which, it is said, was not specifically addressed by the parties either below or on appeal. I must, however, respectfully disagree with my colleagues on both of these points. As noted above, appellants argued their interpretation of the Social Services Law and the regulations at length, in seeking summary judgment and in their motion for reargument below. They also cited the particular regulation which I find to be contrary to certain statutory provisions, although appellants did not refer to the offending clause (x) (18 NYCRR 432.2 [b] [4] [x]). It should also be noted that respondents argued, in opposition to appellants’ motion below, that there was a bona fide legal issue as to whether the individual respondents were entitled to receive mandated services and that "a definitive interpretation of the law is needed to move defendants to provide these services.” The lower court, without explicitly addressing appellants’ analysis of the law, denied their motion and, in effect, granted summary judgment to respondents. Appellants now challenge that ruling.
We are, therefore, called upon to determine, as a matter of law, what are appellants’ duties under the Social Services Law and whether they have acted in accordance with their statutory mandate. In order to do so, we must review all aspects of the relevant law, not merely those portions cited by the parties. After such review, should it appear "that any party other than the moving party is entitled to a summary judgment” then this court, as a division of the Supreme Court, "may grant such judgment without the necessity of a cross-motion” (CPLR 3212 [b]) or a cross appeal (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]).
Appellants maintain that respondents’ cases were thoroughly and promptly investigated before this action was commenced and that the investigations revealed no need for, nor any statutory entitlement to the requested preventive ser*184vices. Nevertheless, preventive services were provided to the individual respondents after they instituted this action. These individuals then withdrew as parties plaintiff. However, two other families, Lee and Williams, who are similarly situated, were granted leave to intervene. Despite the fact that SSC has only recently determined that the children in these families were not at risk of foster placement, and therefore that preventive services were not mandated, preventive services were likewise provided to the intervenor families after they moved to join this action.
The allegations in the affidavits of the individual respondents substantially conflict with the version of events presented in the affidavits of SSC’s Director of Court Services. Even if SSC’s recitation is fully credited, the picture presented of appellants’ response to these cases does little to reassure that they are performing competently. SSC claims that no social services official has ever suggested, nor has any determination been made, that the Williams children are at risk of foster placement. Contrary to the conclusion reached by the majority, I find that the facts which the social services officials knew or should have known regarding this family so plainly indicated imminent danger to the children’s health and well-being and, therefore, a risk of foster placement, that SSC’s assertion amounts to a declaration that, in this case at least, appellants have inadequately performed their statutory duties.
The Williams family became homeless in September 1985, after Mrs. Williams, who had been deserted by her husband, was forced to leave her sister’s small apartment. Mrs. Williams, who was then several months pregnant, and her five children slept in a hallway for several days. In October 1985, the family was sent by the Emergency Assistance Unit to the Roberto Clemente Shelter in The Bronx, a barracks which accommodates several hundred people in a single room. The shelter, however, immediately rejected the family because the youngest child had tuberculosis. Thereafter, the family was provided with temporary emergency housing in the Martinique Hotel,2 where they occupy one room. Mrs. Williams *185states that the room is usually cold and her son with tuberculosis "coughs a lot and feels sick because of the cold.”
The Crisis Intervention Service (CIS) caseworker who prepared the Williams family intake record on October 23, 1985, noted that the youngest child was taking medication for his tuberculosis, the eldest son was also taking a prescription drug for asthma, and Mrs. Williams was taking antibiotics for a kidney infection. However, the CIS caseworker who interviewed the family on October 30, in the Martinique Hotel, indicated on their "Family Service Assessment” form that there were "no” members of the Williams family under medical care. He also left the form blank where it calls for a description of "any health problems family members have, including * * * any medication prescribed”. Not surprisingly, the caseworker concluded that the family did not fit any of the criteria for a health service referral.
In January 1986, Mrs. Williams failed to keep an appointment with her social worker and her whereabouts were unknown until four days later when the social worker contacted Mrs. Williams’ sister who said that the children had been left with her. On January 17, Mrs. Williams had had herself admitted to Bellevue Hospital, as a psychiatric emergency patient, because she feared she would hurt either herself or the children. After she was released from the hospital, her sister informed her that she would not again agree to take the children and they would have to go to foster care next time.3
On February 18, while taking the subway with her five children from the Martinique Hotel to the Emergency Assistance Unit in Brooklyn, Mrs. Williams went into labor and had to be taken, by ambulance, to the hospital. Her sixth child *186was bom on February 19 with an infection which kept him in the hospital for the first week of his life. He died 40 days later in the Martinique Hotel.
This record indicates several critical failings, not only of the social services worker who neglected to obtain vital health information, but of the DSS case management. It raises serious questions about appellants’ performance: was there a comprehensive file kept on the Williams family; was it ever systematically reviewed; if so, why did no one make a report to the protective service regarding the obvious risk to the health of these children? For, it is evident that if people in the Roberto Clemente Shelter were in danger of contracting tuberculosis from the Williams boy, his four siblings, sharing one room with him in the Martinique Hotel, were also in danger.
All social services workers have a statutory duty to report suspected cases of abuse or neglect (Social Services Law § 413), and are expected to be alert to situations which pose an imminent danger to the health and well-being of children. As discussed, infra, it is the report of suspected abuse or neglect which prompts the child protective service to investigate and to make a determination which, ultimately, enables SSC to say whether or not the child is at risk of foster placement, and whether there are services which would eliminate that risk— i.e., mandated preventive services. Thus, the failure, ab initio, of DSS social workers to report a case of suspected neglect may lead to the failure to provide preventive services which are mandated by law.
In the case of the Lee family, a report was made to the protective service alleging that the Lee children were not properly fed or clothed because Mrs. Lee was giving her public assistance money to her boyfriend. While the protective service worker made contact with the family within 24 hours, as required, the "investigation” consisted of nothing more than an interview with Mrs. Lee who denied the allegations.
It should be emphasized that it is the children, not the parents, who are the intended beneficiaries of the Child Protective Services Act and the Child Welfare Reform Act. In many instances, particularly where the investigation may uncover evidence of criminal conduct by the parents, the parents’ interests may be adverse to those of the child. Consequently, SSC’s reliance solely on parental denials of the allegations must be seen as a failing. The Dembitz Committee also criticized the "excessive reliance” by caseworkers on their *187own impressions of a parent as "concerned” about the child. (Report of the Committee, at 28.) The Committee urged that SSC improve supervision to help its workers "understand the limits of their knowledge about the families, and the need to assess cases on an ongoing basis. Assessment can rarely be completed in one meeting.” (Report of the Committee, at 29.)
After the Lee family intervened in this action and SSC agreed to provide services to them, it was discovered that the younger children had not been attending school because they lacked proper immunizations and had other health-related problems. Ongoing contacts with the family revealed conflict between Mrs. Lee and her teen-age daughter who was picked up by the police in Pennsylvania Station with bruises on her face from where her mother had punched her. This problem was resolved by the daughter being sent to live with relatives in the south. The family was eventually given referrals for health services, day-care and housing assistance.
Mrs. Williams, Mrs. Lee and the organizational respondents herein claim that they are entitled to system-wide declaratory and injunctive relief. There can be no doubt as to the irreparable harm which respondents will suffer if the agencies charged with providing protective and preventive services neglect their statutory duties. However, before the court may exercise its formidable equity powers, "no matter how emotionally compelling” the claims may be, respondents are required to show a likelihood of success on the merits (Tucker v Toia, 54 AD2d 322, 326 [4th Dept 1976]). The remedy they seek, in the nature of mandamus, depends on the character of the duty which respondents would have the court compel appellants to perform (Klostermann v Cuomo, 61 NY2d 525, 539-540, supra). The character of that duty is to be found through examination of the Social Services Law.
Child Protective Services and Nonmandated Preventive Services
It is the very strong public policy of this State indeed, "the state’s first obligation” to children in destitute families—to help the family "with services to prevent its break-up or to reunite it” (Social Services Law § 384-b [1] [a] [iii]; § 131 [3]; see, Matter of Star A., 55 NY2d 560, 566 [1982] [Meyer, J., dissenting]). Yet, this policy must be carefully balanced against the State’s duty, as parens patriae, to safeguard the health and well-being of children. (See, Finlay v Finlay, 240 *188NY 429, 433-434 [1925] [Cardozo, J.]; see also, Santosky v Kramer, 455 US 745, 766-767 [1982].) Article 6 of the Social Services Law, and titles 4 and 6 of that article in particular, establish the complex regulatory scheme through which the State attempts to effect this social policy while, at the same time, fulfilling its moral duty as sovereign.
One aim of Social Services Law, article 6, title 6, is to encourage reporting and investigation of suspected child abuse and maltreatment by establishing, in each county, "a child protective service capable of investigating such reports swiftly and competently” (Social Services Law § 411). The local protective service must also be capable of providing protection for the child or children "from further abuse or maltreatment and rehabilitative services for the child or children and parents involved” (§ 411). To this end, every local child protective service must maintain "a sufficient staff of sufficient qualifications to fulfill the purposes of this title” (Social Services Law § 423 [1]). Adequate numbers of competent staff are essential to the fulfillment of the child protective service’s statutory duty because the local child protective service is "the sole public agency” responsible for receiving and investigating, or arranging for the investigation of, "all reports” of suspected child abuse or maltreatment (§ 423 [1]).
The Social Services Law sets out a specific time frame and particularized requirements for the investigation of reports of abuse or maltreatment (Social Services Law § 424). A Statewide central register was created under title 6 to receive reports of suspected abuse or maltreatment from persons under a statutory duty to report such cases (see, Social Services Law § 413) and from other persons making such reports, either openly or anonymously.
It is necessary to emphasize the critical role of those under a statutory duty to report suspected cases of abuse or neglect. Without such reports the statutory mechanisms for protecting children and rehabilitating their families remain idle and ineffective. The willful failure to make a report by persons legally required to do so is a class A misdemeanor and may give rise to civil liability as well (Social Services Law § 420). As noted above, all social services workers are required to report cases "when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child” (Social Services Law § 413).
*189After initial screening, the central register relays the reports to the local child protective service for investigation (Social Services Law § 422). Upon receipt of such a report, the child protective service must commence an appropriate investigation "within twenty-four hours” (Social Services Law § 424 [6]). The protective service investigation must include "an evaluation of the environment of the child named in the report and any other children in the same home” and a determination of the risk to the children if they remain in the existing home environment. (§ 424 [6]). If an initial assessment indicates that this environment presents an imminent danger to the life or health of the child or children, the child protective service caseworker may remove them from the home, in accordance with the provisions of the Family Court Act (§ 424 [8]; see, Family Ct Act § 1024).
Seven days after receiving the report of suspected abuse or maltreatment, the local child protective service must forward a preliminary written report of its initial investigation to the State central register. The preliminary report must include an evaluation of the home environment and a summary of actions taken or contemplated. (Social Services Law § 424 [3].) Thereafter, follow-up reports must be sent periodically to the central register until a final determination is made.
The caseworker must also assess "the nature, extent and cause of any condition enumerated” in the report of suspected abuse or maltreatment (Social Services Law § 424 [6]) and the service has 90 days within which to determine whether the report is unfounded or "indicated”—i.e., that "some credible evidence of the alleged abuse or maltreatment exists” (Social Services Law § 424 [7]; § 412 [5], [6]). A protective service investigation is not complete unless these distinct statutory requirements have been met.
While the determination that a report is indicated or unfounded is a matter of discretion, the law requires that the investigation on which that determination is based be conducted "swiftly and competently.” The court below found, and I agree, that appellants have not commenced timely investigations in all cases, as required. I further find that appellants have not conducted competent investigations in all cases due to an erroneous policy promulgated by defendant Commissioner of the New York State Department of Social Services.
The adequacy of the protective service investigation must be judged in light of the statutory functions it serves. First and *190foremost, the protective service is the sole public agency authorized to instigate or to conduct an investigation into the home for purposes of establishing "when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met.” (Family Ct Act §§ 1011, 1034; Social Services Law § 424 [11].) The investigation commenced under Social Services Law § 424 provides grounds for initiation of child protective proceedings under the Family Court Act, the only legal avenue for removing the child to foster care. At a minimum, therefore, this investigation must determine whether there is credible evidence, sufficient to warrant judicial intervention by the Family Court—i.e., prima facie evidence of abuse or maltreatment, as legally defined.
The definitions of abuse and maltreatment in Social Services Law § 412 incorporate by reference the definitions of abuse and neglect found in section 1012 of the Family Court Act. The definition of neglect is of special concern given the facts presented herein and because, according to one expert, it "has been the predominant type of report (58% of reported cases in 1984) and deprivation of necessities has been the major form of maltreatment identified (55% of maltreated children in 1984) over the history of reporting statistics.” (McCabe, Child Neglect: A Research View, in Child Abuse and Neglect, at 23 [Cohen, McCabe and Weiss editors, 1986].)4 Maltreatment subsumes the category of neglect which is defined as follows in Family Court Act § 1012:
"(f) 'Neglected child’ means a child less than 18 years of age
"(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care
"(A) in supplying the child with adequate food, clothing, shelter or education * * * or medical * * * care, though financially able to do so or offered financial or other reasonable means to do so”. (Emphasis supplied.)
Under this definition, the fact that the child or children are at risk because of material privation is not, of itself, sufficient to support a finding of neglect. Where the parent is financially unable to make adequate food, clothing, shelter, or medical *191care available, reasonable meXns for providing these necessities must be offered to the parent.
The determination of whether a report of child neglect is unfounded or indicated must turn on an assessment of the indigent parent’s intent and competence in providing the necessities of life to the child once the parent has been given reasonable assistance. Evaluation of parental competence in meeting the child’s needs is essential because, however well intentioned the parent may be, good intentions are not enough to insure a child’s well-being (Matter of Franz, 55 AD2d 424, 426-427 [2d Dept 1977]). Indeed, the purpose of the protective service investigation is to differentiate those cases where an otherwise competent parent is simply overwhelmed by circumstances outside of his or her control—such as being homeless in the midst of New York City’s housing crisis—from those cases where the parent is irremediably incompetent.
Where, based on the investigation into the home environment, "any child [is] believed to be suffering from abuse or maltreatment” the child protective service must pursue the investigation by offering the parent reasonable means to resolve the problem (Social Services Law § 424 [9]; emphasis supplied).5 Undoubtedly, there may be instances where the degree of danger posed to the child definitively bespeaks a lack of parental competence, thereby obviating the need to probe any further (Family Ct Act § 1046 [a] [ii]; see, Matter of Shelley Renea K., 79 AD2d 1073 [3d Dept 1981]). However, it is equally certain that in many, if not most, cases the cause of the parental failure will be ambiguous. The offer of reasonable means to eliminate the danger to the child is, therefore, essential to the investigation into suspected neglect. Without it, the protective investigation must be deemed inadequate because it has failed to seek evidence which would establish each of the necessary elements of neglect, as legally defined.
The investigation by the child protective service is not complete once reasonable means have been offered and ac*192cepted. The service must monitor the parent’s performance to determine whether those means are effective in eliminating the danger to the child, or merely in palliating it. For, in addition to investigating reports of suspected child abuse or maltreatment, the child protective service also has a duty "to prevent further abuses or maltreatment to children and to coordinate, provide or arrange for and monitor the provision of those services necessary to safeguard and ensure the child’s well-being” (Social Services Law § 423 [emphasis supplied]).
If the child would again be imperiled by withdrawal of the services or assistance given the parent during the investigation, then the protective service must continue to provide them until such time as they may be withdrawn without endangering the child. Services which are necessary to safeguard the children in the home and without which the children would be at risk of foster placement are mandated under section 409-a (1) and must be provided in accordance with the child service plan, required under section 409-e of the Social Services Law. (See, discussion, infra.)
I cannot agree with the majority’s assertion that a child who has been the subject of an indicated abuse or neglect report (one in which credible evidence of abuse or neglect is present) may be left in the home with no protective or preventive services to prevent a recurrence of the abuse or neglect. This would clearly be contrary to the directive of Social Services Law § 423. Moreover, I question SSC’s ability to determine that an indicated report of abuse or neglect is merely an isolated incident unless the protective service monitors the parent’s performance for some period after the report is deemed indicated and provides services to prevent a recurrence. (See, 18 NYCRR 432.2 [b] [5].)
The majority raises the objection that preventive services are intended, not to protect children in the home, but to rehabilitate the family. It is perfectly clear, however, that if the child is to live safely at home with parents who have abused or neglected him, then the parents must be rehabilitated. This is the protective service’s mandate and section 411 requires that it be capable of providing "rehabilitative services for the child or children and parents involved” in the report. The error of the majority’s assertion is evident from the regulations: "Rehabilitative service means those services necessary to safeguard and insure the child’s well-being and development and to preserve and stabilize family life, including but not limited to preventive services as defined by Part *193423 of this Title, and protective services for children” (18 NYCRR 432.1 [i], formerly 432.1 [h] [original emphasis]). Indeed, the only function performed by the protective service which is not considered a "rehabilitative service”, under this regulation, is the investigation and evaluation of abuse or maltreatment reports.
The distinction between protective and preventive services appears, upon first reading of the regulations, to be more nominal than real. Protective services "shall mean services on behalf of children” who are named "in an alleged or indicated report of abuse and/or maltreatment” (18 NYCRR 432.1 [p], formerly 432.1 [o]). The regulation goes on to list 14 activities which "may be considered protective services for children” and one of these is: "arranging for the provision of appropriate rehabilitative services, including but not limited to preventive services and foster care for children” (18 NYCRR 432.1 [p] [9] [emphasis supplied]). Thus, preventive services would appear to be merely a subset of the "rehabilitative services” which the protective service may offer.
The regulation which defines preventive services (18 NYCRR 423.2 [b]) lists 15 activities in this category. Among the 15 preventive services, 6 are deemed "core services” which must be provided to families entitled to receive mandated preventive services, if their child service plan indicates the need for them. These "core services” are: day-care services; homemaker services; parent aide and parent training services; clinical services; transportation; and 24-hour emergency services (18 NYCRR 423.2 [b], [d]). It is these core services which respondents allege are being denied to them and to others similarly situated, on a system-wide basis.6
Although preventive services are mandated under circumstances set forth in subdivision (1) of Social Services Law § 409-a, under subdivision (2) of this section nonmandated preventive services may be provided to a child or his family for *194the purpose of "averting an impairment or disruption of a family which will or could result in the placement of a child in foster care” (see, Social Services Law § 409 [emphasis supplied]; see also, Social Services Law § 424 [12]). Thus, the Social Services Law plainly authorizes provision of whatever services, protective or preventive, are necessary to avert the possibility of foster placement. Moreover, the law allows these services to be administered at whatever stage of the protective service investigation the caseworker first identifies conditions which, if left uncorrected, might disrupt or impair the family unit.
The regulations promulgated by defendant Commissioner of the New York State Department of Social Services, however, bar the protective service caseworker from offering nonmandated preventive services at any stage of the protective investigation prior to the ultimate determination that the report is indicated. Consequently, the caseworker cannot offer day-care, homemaker,7 or parent training services as an investigatory tool to determine whether a report of suspected neglect is indicated, even when such services are the only reasonable means for assessing the parent’s competence in meeting the child’s needs.
Although regulation 432.2 (b) (4) (ii) contains a general authorization to provide or arrange for "services to children named in child abuse and/or maltreatment reports and their families prior to a determination” as to whether the report is indicated (18 NYCRR 432.2 [b] [4] [ii] [emphasis supplied]), regulation 432.2 (b) (4) (x) specifically bars the offer of preventive services before such a determination has been made. Under that regulation, the child protective service caseworker may provide preventive services in addition to protective services only "as long as the case is eligible for mandated preventive services” under 18 NYCRR 430.9 and the caseworker is directly providing services "to the children named *195in indicated abuse and/or maltreatment reports and their families” (18 NYCRR 432.2 [b] [4] [x] [emphasis supplied]; see also, 18 NYCRR 423.4 [i]).
Thus, upon further examination of the regulations, it becomes clear that "preventive services” are rehabilitative services which may only be provided after a determination that an abuse or maltreatment report is indicated. The majority contends that the rehabilitative services which the child protective service may provide are "in part duplicative of preventive services and in some respects probably more extensive”. Therefore, the majority reasons, the above-cited restriction does not preclude the protective service from providing the same type of services (although not called preventive services) during a continuing investigation.
The problem, however, is that if the protective service did so, SSC would forfeit its right to reimbursement. Under section 409-b, 50% of the allowable costs for nonmandated preventive services are reimbursable by the State (see, 18 NYCRR 423.5). Even the majority must concede that it is unreasonable to penalize SSC by denying it reimbursement for services which it has a duty to provide and which it is authorized to provide, under subdivision (2) of section 409-a, and for which it is entitled to reimbursement.
The majority’s argument that this regulation does not restrain other social services officials from offering families nonmandated preventive services prior to a determination that they are eligible for mandated services also misses the point. As discussed, infra, there must be an imminent risk that the child will be placed or continued in foster care, and a determination that preventive services will eliminate that risk, before the family is eligible for mandated preventive services under section 409-a (1), or for nonmandated services under regulation 423.3 (b). (But cf., Social Services Law § 409-a [2].) However, a finding that the child is at risk of foster placement presupposes that an abuse or neglect report has been found indicated.8
*196A request for preventive services, either directly from a destitute parent or through a referral by DSS or a private agency, must, therefore, be denied unless credible evidence has been found that a child in the home is abused or maltreated. It is completely unrealistic to expect that the parent will provide such evidence or that it will, by chance, be revealed without methodical investigation. Unless a report has been made and the protective service finds credible evidence of abuse or neglect, as legally defined, there is no basis for finding that the child is at risk of foster placement and, therefore, no basis for providing either mandated or nonmandated preventive services.
The majority acknowledges that the protective service is vested with sole responsibility for investigating reports of suspected neglect and for determining when a neglect report is indicated. The foregoing analysis has shown that credible evidence of neglect, as legally defined, is evidence that the parent has failed to adequately provide for the child even though offered reasonable means to do so. The offer of means which might reasonably be expected to eliminate the danger to the child is an indispensable part of the investigation into the reported neglect. Without it there is no evidence of parental fault.
If the protective service investigation fails to uncover such evidence where it exists, no other social services official is authorized to seek it out or to make a determination that the report of suspected neglect is indicated and, therefore, that the child may be removed from the home. Thus, the offer of nonmandated preventive services by the protective service caseworker is an essential option, authorized under the statute but barred under regulation 432.2 (b) (4) (x), for conducting competent investigations into all cases of suspected neglect.
This regulation directly conflicts not only with protective service’s statutory duty to investigate, but also with its duty to arrange for and monitor the provision of "those services necessary to safeguard and insure the child’s well-being” (18 NYCRR 432.1 [i]) during the 90-day investigatory period. While regulation 432.2 (b) (4) (v) accurately reflects the protective service workers’ duty to insure, during the investigation, that "the treatment plan protects the child from further *197abuse or maltreatment”, and that the family "is receiving the kind and degree of treatment services it needs” clause (x) of this regulation eliminates preventive services as an option for the treatment plan, even when such services may be necessary to protect the child and to determine whether the child can remain safely in the home if such services are provided. In essence, regulation 432.2 (b) (4) (x), which makes no distinction between mandated and nonmandated preventive services, makes Social Services Law § 409-a (2) a dead letter.
While an administrative agency’s construction and interpretation of the statute under which it functions is entitled to "greatest weight” (Matter of Herzog v Joy, 74 AD2d 372, 375 [1st Dept 1980], affd 53 NY2d 821 [1981]), where such interpretation is erroneous, as a matter of law, it cannot stand. Regulation 432.2 (b) (4) (x) is an impermissible obstacle to fulfillment of the protective service’s statutory duties. The option of providing nonmandated preventive services is fundamental to the statutory scheme for detecting cases of neglect, and to the performance of the protective service’s duty to provide "those services necessary to safeguard and insure the child’s well-being”.
Consequently, respondents are entitled, as a matter of law, to a declaration that regulation 432.2 (b) (4) (x) is contrary to the provisions of the Social Services Law and impermissibly impedes the protective service agencies from carrying out their duties thereunder. Defendant Commissioner of the New York State Department of Social Services should be required on remand: to recall regulation 432.2 (b) (4) (x) and to promulgate a new regulation consistent with the provisions of Social Services Law § 409-a (2) and the duties incumbent on the child protective services under sections 423 and 424 of said law; and to review all regulations promulgated under Social Services Law, article 6, titles 4 and 6, to insure that they are consistent with said law; and to redraft any regulations found to be inconsistent or incompatible therewith.
Mandated Preventive Services
Upon a finding by a social services official "that [a] child will be placed or continued in foster care” unless preventive services are provided "and that it is reasonable to believe that by providing such services the child will be able to remain with or be returned to his family”, the provision of said preventive services, in accordance with the child’s service plan, is then mandated by law (Social Services Law § 409-a [1] *198[a]). Thus, preventive services are mandated once a two-part finding has been made: (1) that the risk of foster placement or continued foster care is imminent; and (2) that preventive services will be effective in eliminating that risk.
Evidence of neglect, as that term is legally defined, is evidence of parental failure to provide for the child once reasonable means to do so have been offered. As noted above, when dealing with destitute families it will be impossible to determine, in most cases, whether the condition endangering the child is a sign of temporary stress caused, for example, by the family being homeless, or a symptom of deep-seated parental failure. The offer of nonmandated preventive services by the protective service as an exploratory mechanism is essential for determining whether the danger to the child can be eliminated or alleviated if the destitute parent receives assistance. Without it, there is simply no basis, in many cases, on which to make a competent finding as to the need for, or the imminence of, foster placement.
The failure to detect evidence of neglect thus leads to a failure to identify the child or children as being at risk of placement in foster care. That determination, in turn, is what triggers the requirement that SSC prepare a child service plan in accordance with section 409-e. In drafting the child service plan, SSC is required to make a detailed assessment "of the child and his family circumstances” and "of the likelihood that specific preventive services” will improve conditions in the home sufficiently to avert, or reduce the duration of, foster placerfient (§ 409-e [1] [b]). The provision of nonmandated preventive services during the protective service investigation provides an empirical basis for determining which services, if any, will enable the neglected child to remain safely in the home or be returned to it sooner. Without empirical evidence that services will be efficacious, the 409-e child service plan will be based on mere supposition.
However, as has already been shown, regulation 432.2 (b) (4) (x), promulgated by defendant Commissioner of the New York State Department of Social Services, improperly forbids the child protective service from offering nonmandated preventive services during the investigation as a means of detecting neglect, as legally defined. Without such evidence of parental incompetence there is no legal risk of the child being removed from the home. Inasmuch as the protective service is "the sole public agency” charged with investigating reports of suspected child abuse and neglect, its failure to gather evidence "swiftly *199and competently” means that children who would otherwise be identified as being at risk of foster placement are left in a dangerous home environment without services to improve the conditions which have escaped detection—often with tragic consequences.
This regulation, promulgated in derogation of the provisions of section 409-a (2), directly and adversely affects the administration of mandatory preventive services under section 409-a (1). Indeed, it negates the possibility, in many cases, of the required finding under section 409-a (1) being made by preventing the evidence on which such a finding must be based from ever being gathered.
Appellants contend, and the majority agrees, that respondents are not entitled to the relief that they seek because they never requested mandated preventive services. First, it must be borne in mind that abused and maltreated children are the intended beneficiaries of these services, not their parents. Indeed, the parents’ interest may directly conflict with those of the child, in which case a request for services may never be made. Second, and more importantly, the law imposes a clear and compelling duty on SSC to investigate and uncover those cases in which children are endangered in the home and in which preventive services are needed to make the home safe for them. To hold that respondents were required to request preventive services, is to impose a duty where the law creates none and to relieve SSC of the duty incumbent upon it to provide preventive services where investigation reveals they are required, whether or not a request has been made.
Were it not for the State’s policy prohibiting protective service agencies from offering nonmandated preventive services when those services are appropriate and necessary for detecting evidence of neglect, families which are entitled to mandated preventive services would be identified and helped far more often than is now the case.
The existence of this policy is clear and convincing evidence that appellants have failed to carry out their statutory duties to conduct and supervise competent child protective service investigations into all cases of suspected neglect; to gather evidence on which to base a finding under Social Services Law § 409-a (1); and to provide mandated preventive services where required by law. Therefore, an injunction directing appellants to perform their statutory duties appears both necessary and appropriate (Klostermann v Cuomo, supra, at 531).
*200While it is true, as the majority points out, that the findings required pursuant to section 409-a (1) are discretionary, the Social Services Law imposes a nondiscretionary duty on the protective service agency to investigate all cases of suspected abuse or maltreatment "swiftly and competently” and a duty to provide those services necessary to safeguard children from abuse or neglect in the home. Thus, while it would be inappropriate for the court to compel the performance of a purely discretionary act, "[w]hat must be distinguished, however, are those acts the exercise of which is discretionary from those acts which are mandatory but are executed through means that are discretionary.” (Klostermann v Cuomo, supra, at 539.)
Appellants emphasize the elements of discretion inherent in the determinations preliminary to the mandatory provision of preventive services. However, appellants’ duty to timely investigate all reports, to probe for credible evidence of neglect as legally defined, and to provide whatever services are necessary to safeguard the child during the investigation and thereafter, is not discretionary. Each of these nondiscretionary functions is intended to yield information which will enable appellants to determine whether the risk of foster placement exists due to parental neglect and what services, if any, will eliminate that risk by making the home safe for the child.
The Social Services Law vests in appellants various discretionary means for conducting investigations into suspected cases of abuse and neglect, and for protecting children during the 90-day investigatory period and thereafter. Where recourse to those discretionary means is essential to the fulfillment of appellants’ statutory duties, then an injunction will issue "to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so” (supra, at 540).
It follows from this analysis of the law that respondents are entitled to an injunction requiring appellants to insure: that all social services workers comply with their statutory duty to report cases in which there is reasonable cause to believe that a child coming before them in their professional capacity is an abused or maltreated child; that the protective service commence investigations into all reports of suspected abuse or maltreatment within 24 hours and complete such investigations within 90 days; that, whenever any child is believed to be suffering from neglect based on the initial protective service evaluation or any subsequent analysis of the home envi*201ronment, the protective service shall coordinate, provide or arrange for and monitor the provision of appropriate services to the family, including nonmandated preventive services, as a means of determining whether there is credible evidence of neglect, as legally defined, unless it is determined that there are no such services which might reasonably alleviate or eliminate the condition endangering the child, in which case the child or children shall be taken into protective custody pursuant to the provisions of the Family Court Act; and that, whenever it appears, during the protective investigation, that the continuation of said services is necessary to safeguard the child or children in the home or to make the children’s safe return to the home possible, then such services are to be provided as mandated preventive services, in accordance with the child service plan drafted under Social Services Law § 409-e.
It is clear that the administrators and social service workers are hard-working people of good faith and that the regulations are complicated and, perhaps, confusing. Despite this, it is to be remembered that the task at hand is the rehabilitation of families, the protection of the health and welfare of children and ultimately, the saving of their lives.
Sullivan and Wallach, JJ., concur with Sandler, J. P.; Kassal and Rosenberger, JJ., dissent in an opinion by Ro-SENBERGER, J.
Order, Supreme Court, New York County, entered on or about August 7, 1986, modified, on the law, without costs and without disbursements, to deny the motion of intervenorsplaintiffs for a preliminary injunction requiring the city defendants to prepare service plans within 30 days and to provide all services recommended in such plans; to declare that the findings set forth in Social Services Law § 409-a (1) (a) involve the exercise of discretion and judgment; to declare that a child’s service plan prepared in accordance with Social Services Law § 409-e does not constitute a contract enforceable as such by the court; and to dismiss as otherwise nonjusticiable plaintiffs’ claim for system-wide declaratory relief with regard to preventive services, and otherwise affirmed. The appeal from the order of the same court entered on or about May 27, 1986 is unanimously dismissed as superseded by the appeal from the order entered on or about August 7,1986.
. The findings of the Committee were publicly acknowledged and accepted by defendant-appellant, Commissioner of Social Services, whose Internal Fatality Review Panel had reached similar conclusions in its study of 35 of the 1985 abuse- or neglect-related deaths and of 42 such deaths which occurred in 1986, all of them in families previously known to SSC. (See, mem of Jan. 29, 1987, from William J. Grinker to Stanley Brezenoff, re: Activities of the HRA Internal Fatality Review Panel.)
. Among the findings of the Dembitz Committee was the conclusion that families which are temporarily housed in welfare hotels have special needs because "[a]dded to poverty is the disruption of whatever network of support and resources the family had in its old neighborhood” (Report of the Committee, at 74). Seven of the children whose deaths were investigated *185lived in welfare hotels. The Committee pointedly recommended the replacement of "welfare hotels” with decent housing for the growing number of New York’s homeless families with children. Although it is acknowledged that this was a long-term solution, the Committee advocated that while the welfare hotels exist, "preventive and protective services must be supplied to meet the special dangers to children who live there.”
. It is not surprising that SSC found no report from Bellevue Hospital in its files, indicating that the Williams children might be at risk of abuse or neglect. The Dembitz Committee found that the law requiring hospitals to report suspected abuse or neglect was "an insufficient safeguard” because the mental health professionals are not always aware of the child’s existence. (Report of the Committee, at 45-46.) What is surprising, however, is that the DSS social workers, who knew that the mother of these five children had reached the limits of her ability to cope, saw no danger to the children.
. Dr. Maryann McCabe was the Director of the Child Sexual Abuse Project for the New York State Department of Social Services until 1986.
. Should the parent refuse the reasonable means offered to alleviate the child’s distress, that refusal is evidence of neglect and the child protective service may seek a Family Court order to compel the parent to accept the services offered. (Social Services Law § 424 [10]; 18 NYCRR 432.2 [b] [4] [iv]; see, Family Ct Act §§ 1027, 1054.) If the parent persists in neglecting the child’s needs despite diligent efforts by the social service agencies to help the parent provide for the child, the Family Court may ultimately terminate his or her parental rights (Family Ct Act § 1031; Social Services Law § 384-b; see also, Matter of Star Leslie W., 63 NY2d 136, 142-143 [1984]).
. Respondents have submitted a report titled "Foster Care 1984,” on the implementation of the recommendations from the Mayor’s Task Force on Foster Care. (See, affidavit of Sister Mary Paul in support of the motion for a preliminary injunction.) This report is quite critical of appellants’ performance in delivering preventive services and it supports respondents’ claim that very few families receive the most needed supportive preventive services. The report states: "Unfortunately, as a result of State law and regulations and City Policy, the vast majority of funds from the Child Welfare Reform Act are used for counseling and case planning rather than to provide concrete assistance such as shelter, homemakers, day care, or emergency cash grants.”
. The majority asserts that the protective service is authorized, during the investigation, to provide day-care and homemaker services which, under regulation 432.1 (p) (10), "may be considered protective services” but which, under regulation 423.2 (b), are defined as preventive services. However, a close reading of regulation 432.1 (p) (10) does not support this. "Programmatic need for [these] service[s] must have been established as a result of the investigation” into a report of abuse or maltreatment and these services must' terminate when the case is closed with the central register "pursuant to the standards set forth” for closing indicated cases (18 NYCRR 432.1 [p] [10]; 432.2 [c]; cf., 18 NYCRR 432.9, governing disposition of unfounded reports).
. The imminent risk of foster placement arises only when legal grounds for removing the child from the home, pursuant to article 10 of the Family Court Act, are found to exist. An article 10 petition must allege "facts sufficient to establish that a child is an abused or neglected child under this article” or, that the return of the child to his parent’s custody "would place the child in imminent danger of becoming an abused or neglected child.” (Family Ct Act § 1031 [a], [d].) Unless there is evidence of abuse or neglect, the child cannot be removed from the home. The strong, constitutionally *196protected interest of parents in retaining custody of their children requires a showing of parental fault or unfitness before the State may interfere in the parent-child relationship. (Stanley v Illinois, 405 US 645, 649-657 [1972].)