Organization of Foster Familes for Equality & Reform v. Dumpson

FAMI FOSTER OF ORGANIZATION EQUALITY AND FOR

LIES Plaintiffs, al., et

REFORM DUMPSON, Individually as Ad

James City Hu of the New York

ministrator Administration, al., et

man Resources

Defendants, al., Rodriguez et

Naomi

Intervenors-Defendants. 2010.

No. 74 Civ. Court, District

United States D. New York.

S. 22, 1976.

March 29, 1976.

As Amended March May

Stay Granted 2197, 2198.

See 12,1976.

Probable Jurisdiction Noted Oct. 97 S.Ct. 232. Lowry

Marcia Robinson and Peter Bien- stock, Union, New York Civil Liberties New plaintiffs Organization City, Reform, Equality Foster Families for Smith, Ralph Madeline and Christiane Gold- Lhotan, berg, George Dorothy on be- all similarly half of themselves and others situated. Buttenwieser, City,

Helen L. New York Gandy, Eric Danielle and Ra- Serrano, Patricia, Cheryl, Cynthia fael Wallace, on behalf of Cathleen themselves similarly all others situated. Burke, by Elliot P. Corp. affording prior Counsel without Adrian to either Counsel, Hoffman, Corp. Asst. New York parents.1 child or foster Dumpson James and City, for defendants parents initially Plaintiff foster sought to Elizabeth Beine. represent, friend,” as “next of interests O’Shaughnessy, County Atty. F. of John However, their foster children as well. County Gallagher, N. by James Mi- Nassau any possible interest, forestall conflict of Y., neóla, for defendant James P. N. Judge appointed Carter Helen Buttenwies- O’Neill. er independent as counsel for the foster children, advising parties of his action Lefkowitz, Atty. of the Louis J. Gen. letter dated October 1974. In that York and A. Hirshow- of New Samuel State capacity, she has Gen., consistently argued that itz, Atty. City New First Asst. York parents constitutionally Kantor, City, by Stanley L. New York for cognizable independent interest of of Shapiro and Abe La- those defendants Bernard the foster children and an adversary vine. hearing is not proper forum to deter- Toby Golick, Thompson and Marttie L. mine the “best interest of the child.”2 The Gans, City by Gruner New York Louise government officials at defendants — City, York for intervenors-defendants. New state and local level and the Di- Executive LUMBARD, Judge, Circuit Before and rector of the Catholic Society— Guardian CARTER, Judges. and District responsible POLLACK administering for the foster

care system within their respective jurisdic- OPINION addition, tions. In five mothers currently of children in foster care were LUMBARD, Judge: Circuit granted leave to intervene in these proceed- Organization of Foster Families for ings on behalf of and themselves all others (OFFER) Equality and Reform and three similarly situated.3 bring individual foster this class families scheme, The present statutory applicable declaratory injunctive action for relief throughout state,4 provides most of seeking of the invalidation New York Social public the local welfare department or an 383(2) Services Law and N.Y.C. §§ private authorized agency acting on allege Plaintiffs its be- R.R. 450.14. their may, half5 in its discretion complaint provisions that the above violate and on days notice, order the Equal any Protection and Due Process removal of both foster child Clauses of the Fourteenth Amendment the foster home which he or she has they placed. authorize the state to remove- been 383(2) Social Law Services §§ foster children from their foster homes having 400. After of informed provisions continuously 1. Pursuant of U.S.C. children who have lived their with judge this three court was convened to parents year; for over one and all natu- plaintiffs consider non-frivolous constitutional voluntarily placed ral who have chil- claims. dren in foster care: recognition- independent position In 2. fully below, 4. As will be discussed more New Buttenwieser, by Mrs. advanced term City York during has revised throughout “plaintiff” opinion bewill used this litigation. of course this to refer Offer and the foster although the foster children were also named in agency 5. Authorized defined York New complaint. 371(10). any Social Services Law It includes public bureau, local welfare children’s such as order, separate concurrently In filed with City the defendants New Bureau of Child opinion, Judge granted Carter mo- County Bureau, Welfare Nassau Children’s tion both and intervenors class any voluntary child-care under the following parties certification. are thus supervision represented New litigation: York State Board in the instant All foster Welfare, Social who have had a foster child live with such the defendant .Catholic continuously year; Society all them for over one New Guardian York. notice, (1923); L.Ed. 1042 Pierce v. printed Society in a removal Sis- impending ters, space detailed contains no 69 L.Ed. removal, (1925); Connecticut, Griswold v. reasons for elucidation a conference may request local social (1965). Cognizant official” of the “public that each of the Su- have an at which department preme Court decisions in this area services dealt traditional, their dissatisfaction express with a more opportunity biological family, no formal decision but agency’s rely with the on several recent studies whereby they may con- provided functionally which define the family manner as a 450.14. psychological biological test it. N.Y.C.R.R. rather than a unit. Goldstein, Solnit, Freud and BEYOND may be ac- parents the foster Although THE BEST OF THE CHILD. INTERESTS by repre- “a companied to the conference year Plaintiffs insist that after one of fos- sentative,” present or cross- they may not care, ter emotional attachments witnesses, they inspect nor examine formed which the state should not at , contained even if records agency files liberty arbitrarily upset. Plaintiffs fur- admin- predicate for the formed therein ther assert that the statistical evidence as Yet, despite these handi- istrative decision. the length average stay child’s upon caps, the burden foster care creates an “informal tenure” child should not why “reasons to submit system raising legitimate expectations that contrast, by agency, removed.” their role as will not be ab- provide countervailing obligation ruptly Perry Sindermann, terminated.6 removing the child. rationale articulated U.S. 33 L.Ed.2d 570 There is evidence in 450.14. N.Y.C.R.R. § (1972). To illustrate the arbitrary manner rarely, if which indicates the record they which claim the statutory outlined ever, conferences re- pre-removal these do provisions operate, plaintiffs can offer the initial decision. reversal of the in the sult example of their own personal involvement enti- Post-removal, with the foster care system. Law hearing,” Services a “fair Social tled to then, “aggrieved” by 400(2), if still Madeline year Smith is a 53 old widow action, judicial may obtain they Elmhurst, who lives in East New York. review. approved She became an foster parent7 un- these Plaintiffs contend supervision der the of the Catholic Guardi- “liberty property” in- them of deprive an Society of New York in 1969. On Feb- law. The process 1, 1970, terests without ruary she took Eric and Danielle assert is liberty interest specific Gandy her into home as foster children. At privacy. g. Meyer E. time, to familial Eric was four and Danielle two. claim, Nebraska, Plaintiffs defendants do not dis- study, year period, over a five In October the New York State De- shell’s conducted rate, discharge partment prepared Program follows: of Social Services revealed a decline Analysis Report Spent No. entitled “Time year___________ First 24% by Served in Care Children the New York State year_________ Second 13% Program report Foster Care 1973.” calcu- year__________ Third stay 8% length median lated that for de- “[t]he year_________ Fourth 9% pendent neglected children in foster care at year___________ Fifth 7% years,” p. the end of 1973 was 4.38 13. This by raw statistic was in context Prof. University parents boarding David Fanshell of the Columbia 7. Foster children in their annually by of Social Work who testified on the School home must be licensed an autho- study longitudinal agency pursuant legislative basis of his own rized to a scheme probability being of a foster child returned to set out in New York Social Services Law 375 markedly declined after his seq. et Fan- the first in foster care. Professor never seen her natu- Danielle has scheduled for the pute, day. next That order longer Eric no remembers remained in 3, 1975, ral mother and effect until March children, legally who are free for when it Both was dissolved her. this court. Mean- while, to be their Wallace, Mrs. Smith Mrs. adoption biological mother, consider begun had habeas corpus proceedings mother. state court to secure the return of her chil- 29, 1974, Nevertheless, March Mrs. on dren. February On Appellate by letter from the Cath- was notified Smith Division for the Department Second upheld Society that Eric and Danielle olic Guardian a lower ruling court mandating immediate from her care because were to be removed implementation plan devised their best interests to leave “it is now in County Department Nassau of Social Serv- concern, agency’s your home.” ices Children’s Bureau. The time ap- Smith, was that her arthritis shared Mrs. peal of that yet decision has not passed. with her well- undeniably interfere would meaning supervise increasing- efforts to Mr. Ralph and Mrs. Goldberg, the final of Eric and Danielle. set of ly plaintiff active behavior parents, face a less signed a waiver of her Although have, Mrs. Smith imminent' They threat. since July conference, she right pre-removal to a made taken care Serrano, of Rafael then six abundantly plain years that she had no inten- it old. Prior to his placement in the surrendering home, the children. When Goldberg tion of Rafael had lived with a they forcibly would be taken from told that succession of foster families having after her, lawyer began obtained a the she abused his natural during date, litigation. To the children instant the time that he remained with them. Al- originally though- remain in Mrs. Goldbergs Smith’s have been repeatedly home — restraining order, temporary the result of a told that they have done job an excellent product voluntary stipulation of a providing later the a healthy environment in which among parties. might grow Rafael and develop, they now fear, on the basis of various unofficial Plaintiffs, and Mrs. Lhotan are simi- Mr. statements, that the Bureau of Child Wel- parents; larly they, authorized foster how- fare intends to remove Rafael place ever, supervision are under the of the Nas- him with his aunt. While the Goldbergs County Department sau of Social Services yet have officially to be notified of any such September Bureau. On Children’s plan, they join in this action to insure that and Patricia Wallace were Cheryl placed in they will be pre-removal entitled to a hear- home; years the Lhotan two later ing if and when such a decision is made. sisters, younger Cyn- joined by were their Neither accounts, defendants nor most intervenors By thia and Cathleen. all dis- pute the strength of children, notably emotional ties that of the reunion binding plaintiffs and their Indeed, foster children happy was a one for all concerned. nor the loss that will be felt if those when Mrs. on ties are Lhotan was told June severed. Both defendants and intervenors 1974 that the children were to be removed insist, however, question that hence, now days from her home ten be- fore us is and must be more given narrowly fo- girls reason was that the four were cused. We agree. As statutorily growing or- family. too attached to their foster dained court we must limit inquiry our Mrs. Cheryl Lhotan was informed that determination of whether biolog- Patricia were to their to be returned deprivation life, established a liberty Cynthia ical mother while and Cathleen property sufficient protec- to invoke the were be transferred to another tions of the Due Process Clause. home. However, 8,1974, July on to a response plaintiffs’ We find no merit in argu Lhotans, request by Judge issued Carter ment that the realities of the foster care temporary restraining barring system, order as presently administered in New State, removal of the children which had been York justify expectation their contention upon several recent will not be ab- studies their role “family” which conclude that can best terminated. summarily ruptly psychological be conceived as a entity, Roth, Regents v. U.S. Board of uniquely characterized the emotional in- (1972). The most L.Ed.2d 548 terdependence each of its members. E. plain- obstacle to formidable obvious Goldstein, Solnit, g. Freud and BEYOND each agreement tiffs’ contention THE BEST OF THE INTERESTS CHILD. assuming upon responsibili- signed of them argue Plaintiffs interdepen- is this respective foster children. ty for their dence, daily born out of and intimate con- by the Catholic Guardian employed contract tact, explains family’s which best pre- throughout used of those typical Society, eminent position. constitutional Plaintiff state, agency reserves to further insist that their rela- realizing request, “upon the child recall tionship with their foster children sat- fully only be made request will such definition, although isfies functional provision While such good reason.” custody the child is vested in the autho- Sindermann, Perry dispositive, rized agency. 383(2). Services Law Social (1972), the L.Ed.2d 570 as Stanley They point to decisions such which it vests discretionary authority Illinois, incompatible is on face (1972), which, they claim, indi- We entitlement. legal claim of plaintiffs’ the Supreme willingness cate Court’s - efforts by plaintiffs’ unpersuaded legal look behind when inquir- formalities relationship with one equate open-ended into ing family the existence of a fruitful evidence Nor does duration. indefinite life.10 placed in average child showing that While the and intervenors defendants system within the care remains rely on precisely Supreme the same Court support plain- years8 approximately 4V2 opinions, emphasize they holding that Sindermann, Perry v. Cf. position. tiffs’ was limited to biological each its facts supra. Intervenors, families. particular, strong- in plain- more difficult considerably We find ly protest any impliciation that the contrac- is enti- that the foster home tiffs’ assertion relationship parent tual between foster is, be, deference tled to the same constitutional ever equiva- foster child or can relationship the more traditional of the a long granted that lent between mother given whom family.9 Plaintiffs base their child to she has birth.11 5, ment, supra. Oklahoma, supra, 8. See note 316 Skinner v. U.S. at 541 Amendment, S.Ct. 1110 at and the Ninth [62 1113] frequently emphasized the “The Court has Connecticut, Griswold v. 381 U.S. family. right importance to con- of the 479, 1678, (1965) 496 S.Ct. 14 L.Ed.2d [85 510] have been children ceive and raise one’s J., (Goldberg, Stanley Illinois, concurring).” v. Nebraska, ‘essential,’ Meyer v. 262 deemed 645, 651, 1208, 1212, 405 U.S. 92 S.Ct. 31 626, 625, 390, L.Ed. 1042] 399 S.Ct. 67 [43 U.S. 551, (1972). L.Ed.2d 558 man,’ (1923), rights v. Skinner ‘basic civil 1110, 535, Oklahoma, 541 S.Ct. [62 316 U.S. ‘[r]ights Stanley, Supreme 1113, (1942), far 10. In Court invalidated 86 L.Ed. 1655] rights,’ property precious provision . . . than more May Illinois law made which the chil- 528, Anderson, U.S. 533 S.Ct. [73 upon dren of fathers of the unwed wards State 840, 843, (1953). is cardinal 97 L.Ed. ‘It 1221] that, the death of the mother. Court held custody, care and nurture us that hearing, prohibited absent the state was parents, primary reside whose the child first presuming that father would an unfit preparation for and freedom include function parent merely because he had never married. supply nor obligations the can neither state 158, Massachusetts, U.S. Prince hinder.’ Society 11. The defendant Catholic Guardian 438, 442, (1944). 88 L.Ed. 645] [64 currently per pays $155 month family pro- integrity unit has found of the home, for each in their boarded Four- Clause of the the Due Process tection in clothing, addition to an allowance for medical Nebraska, Amendment, supra, Meyer v. teenth expenses. typical and dental This amount 626], Equal at 399 262 U.S. [43 paid throughout the state. Amend- Clause of the Fourteenth Protection order, certification have introduced affidavits from namely Intervenors all children in psychol- in social work and foster care for experts longer, eminent we note validity concept attack the ogy suggest which similar interests a similar re- “psychological family.”12 The inter- sult whenever the child is in a foster argue also this court would be long venors home for term care.14 precedent to create a ill-advised The time long passed since when applied to other foster fami-

might later be children were considered mere chattels of less concerned and well-intentioned lies adults with whom lived. The fos before than those now us. system itself, ter care initiated in New York agree parties with the this de- We part the latter of the nineteenth century, family the definition of the bate as to represented large step forward from the society interesting is an its role prior practice of institutionalizing children one. We need not and important should poor with the and feebleminded or boarding not, however, reach out to decide such novel them apprentices out as or indentured ser questions grounds when narrower exist to event, vants. In any it is now well-set support our decision. See Ashwander v. tled that children “persons” are within the Valley Authority, Tennessee 297 U.S. meaning of the Fourteenth Amendment 466, 480, 56 S.Ct. 80 L.Ed. 707-708 rights whose are protection entitled to J., (1936) (Brandéis, concurring). against abridgement. state Gault, In re 1428, 18 U.S. 87 S.Ct. (1967); We believe that the pre-removal Tinker v. District, Des Moines School presently employed by the state U.S. S. Ct. 21 L.Ed.2d 731 constitutionally defective. We hold (1969); Lopez, Goss v. 95 S.Ct. perempto that before foster child can be 729, 42 Foremost rily transferred from the foster home in among rights, those Supreme as the living, which he has been be it to another held, has repeatedly is the to be heard foster home or to the natural who before being grievous “condemned to suffer care, initially placed him in foster he is loss,” Joint Anti-Fascist Committee v. entitled to a at which all concerned McGrath, parties may present any relevant informa 645-46, 95 (1951) (Frankfurt L.Ed. 852 tion to the administrative decisionmaker er, J., concurring). charged determining place with the future ment of the child.13 While our decision The basis right of this easily is under- today perforce is limited to the class as stood. A hearing dispels appearance the Judge in accompanying defined Carter’s and minimizes possibility the of arbitrary or interpretation 12. Plaintiffs have introduced affidavits statutory language the is similarly experts equally eminent fervent practices moreover belied the current of the support concept “psychologi- their of the of the Furthermore, right defendants. the to inter- family.” cal granted by 383(3) vention extends parents only and not to the children Judge dissenting opin- Pollack concludes his themselves. ion with the observation that Social Services emphasize again that, We therefore once 383(3) already through Law § the “embodie[s] exception recently with the right requirement of intervention” amended that a regulations pre-removal hearing provided City, if the effect in New it is presently throughout child has lived with his foster for more the law New York State years. than two statement pre-removal This is incorrect. hearing that a is unavailable re- 383(3) plainly An of § examination reveals that gardless of the duration of the foster relation- grants right while it to foster ship being terminated. any “proceeding” concerning intervene disposition 14. Our of this case makes it unnec- custody of foster children who have resided essary to decide the claim of the foster twenty-four longer, with them for months or challenged regulations statutes purport any does not to create substantive en- deprive equal protection them of the “hearing” “proceeding” titlement to a laws. provided. Judge contrary elsewhere Pollack’s

283 Nonetheless, Goldberg Kelly, agree we are unable to action. misinformed 1019-20, intervenors’ contention that a hearing is superfluous therefore when a foster such child is In cases as to be biological parents. returned to his consequences pre- of a these, harmful circumstances, Even under such a hearing improvident decision perhaps cipitous performs salutary function of providing family from his foster a child to remove the agency organized with an forum in experts assert Plaintiffs’ apparent. gather which to concerning, information in- relationships is indis- continuity personal alia, ter the frequency with which the bio- adjusted develop- well to a child’s pensable logical parent visiting has been his or her accept need to that ex- do not ment. We that, child. If the evidence despite discloses recognize, on the basis of position treme diligent agency, efforts of the the bio- past, already difficult our common logical parent has failed for more than a infancy to adolescence and passage from year to maintain “substantial and continu- complicated by will be further adulthood care, ous contact” with a child in foster separation from a the trauma familiar permanent neglect proceedings may be in- especially This is true for environment. stituted and the biological parent’s pre- already such as these who have children sumptive right custody may be forfeited. undergone emotionally scarring experi- Family seq.; P., Court Act 611 et In re being removed from the home of ence of (Fam.Ct. Misc.2d N.Y.S.2d parents. natural their fortiori, 1972). A ques- N.Y.Co. when the dispute the seriousness of Intervenors tion is whether a foster child is to be moved losses, relying on a principally longi- these another, from one foster home to the state conducted Professor David study tudinal parens patriae capacity, in its will be better University of the Columbia Fanshell School able to make an informed decision after a Work in which he concluded that of Social hearing at which all relevant information statistically significant was no correl- there presented. has been The interest of the develop- ation between a child’s successful state, parens patriae, as is therefore com- number of times that ment and the with, patible antagonistic to, rather than within the foster care system. was moved requirement hearing. of a Goldberg v. however, significant, We find Prof. Fan- Kelly, 397 U.S. at that, testimony profes- shell’s further “as a L.Ed.2d at 297-98. sional, against capricious would be [I] Plainly, present pre-removal confer requirement movement of children.” The designed ence is not adequately to fulfill hearing designed to insure no more. data-gathering function. As outlined not, specifically, Most in earlier, any are denied fear, apparently tervenors intended witnesses, right evidence or way impede par public official with whom confer is regain custody ents to of their children. already acquainted agency’s with the ver in New York is clear: in the ab The law facts, background sion of the and the foster abandonment, formal surrender for sence of child whose future is at stake does not unfitness, adoption or demonstrated the participate. satisfy Such a scheme fails to rights “primacy parental may of not be requirements pro even the most minimal of People ignored.” Kropp Shepsky, ex rel. v. process. cedural due Escalera v. New York 469, 465, 801, N.Y. 113 N.E.2d 804 (2d 305 City Housing Authority, 425 F.2d 853 (1953); Spence-Chapin Adoption Cir.), denied, 853, see also 54, cert. 400 U.S. 91 S.Ct. Polk, 937, (1970). v. 324 N.Y.S.2d 274 27 Service L.Ed.2d 91 We do not under not, by holding We do our the seriously N.E.2d 431. stand defendants to claim oth judgment.15 erwise. today, disturb that local system Accordingly, discouraged we no basis for to the

15. see interve- foster care will be so, doomsday projection biological par- child, doing by that from nors’ to the detriment of the might who otherwise entrust their children the decision in this ents case. 284 discretion, in

Rather, argues may, that court state direct.” Fol- the lowing hearing, by the an order remedied the must be en- defect constitutional incorporating tered one of four provided stated dis- hearing” under “fair post-removal ,the positional alternatives: that child be disagree. We 450.14. § N.Y.C.R.R. care, in he continued foster that be re- Family Corp., Finance U.S. v. Sniadach parents, proceed- turned to his natural that 1820, (1969); 337, 23 L.Ed.2d 349 89 S.Ct. be ings legally instituted to free him Shevin, for 67, 92 407 U.S. Fuentes or, adoption legally already, if free is, that he (1972). at the It 32 L.Ed.2d adoption specified be indi- hearing least, paradoxical suggest viduals. designed hasty the and ill-ad to forestall a foster child his separation of vised Intervenors’ contend that the above pro separation can after

foster home occur cedure, coupled when with the continued place. already unper taken We are has Court, jurisdiction Family Social that a by suaded defendants’ contention 392(10), fully Law Services satisfies con § hearing the examiner to decision reverse requirements. stitutional We not agree. do agency’s family the action and the reunite Wyman, Boone v. F.Supp. (S.D. Cf. effectively quo. restores the status Such aff’d, N.Y.1969), (2d 1969), 412 F.2d 857 Cir. may reunion ameliorate but it cannot eradi denied, cert. 90 S.Ct. injury by uprooting cate the caused the Indeed, degree child. imple First, obviously, and most 392 offers no § mentation of examiner’s deci comfort whatsoever to the in child requires sion disruption arrange care less than eighteen months. interim, made in ments further Second, reasoning appears intervenors’ exacerbate the child’s sense of loss. It is upon rest an unjustifiably expansive inter- the best interests the child that the risk pretation of scope 392. In In re of such dislocations be avoided or minimize W., 77 Misc.2d 355 N.Y.S.2d d.16 (Fam.Ct. 1974), N.Y.Co. the court concluded power We to direct equally find without child merit interve- continued foster care did not encompass nors’ assertion that 392 of the Social authority to order that child protects Law adequately Services the due specific in any maintained foster home. process interests of the foster child. Enact- provides ed in for periodic re- Third, and most fundamentally, interve- view of the status each foster child. One nors an identity assume of interest between years being placed and half after parent and foster child which we are care, thereafter, every years two unwilling to accept already we have indi- Family required Court is to conduct a hear- cated appointment separate coun- upon ing parents, notice to sel at the outset of litigation. parents in whose home the child has jurisdiction continuing Family months, eighteen lived for at least the child safeguard constitutes a against arbitrary care to which the state action the proposed if removal of surrendered, persons and “such other as the the foster child is brought to the court’s anything contrary Nor we pervasive do find moved from a familiar home is holding Supreme potentially devastating. Moreover, Court’s recent that an in deter- evidentiary hearing required prior mining is not whether the best interests of the child disability termination of benefits. would Mathews better be served his removal to an- Eldridge, family, other foster the social worker must 18, (1976). Writing weigh variety for U.S.L.W. and evaluate a “wide of informa- tion,” majority, emphasized subjective Justice Powell limited much it and it some of deprivation and financial nature of the there biased. 424 at at by necessarily plaintiff hearing suffered heavy and the L.Ed.2d at at A U.S.L.W. 4232. by agency provides procedure gathering reliance on medical docu- and evalu- contrast, reaching ating data, thereby minimizing mentation in In decision. such the risk of by young emotional felt a trauma child error. posit may that the foster request post-removal Intervenors still a attention. hearing perform They this function. parents will under N.Y.C.R.R. 450.14. majority correct may well be While the regulations represent amended rights to rest the cases. But we decline a improvement considerable over previous upon the shoulders of the foster children procedures, we note certain deficiencies still who, parents well-meaning, however City’s in New York prac- current perhaps involvement and a personal have a First, above, tices. as alluded to the “inde- may which color their financial interest17 pendent review” now afforded New hearing required, If a is as we conduct. City York is available only upon the affirm- is, required in hold it it is all cases and request ative of the foster parents. We depend upon made to the initia- cannot be reiterate that such a restriction is inconsist- persons.18 tive of third holding ent with our it is the child’s regu- A similar flaw taints amended arbitrary to avoid dislocations which promulgated by City lations New York dur- hearing. necessitates a hearing Whatever of this action. In most ing pendency provided is provided should be as a matter however, respects, City’s New York other of course. represent significant a revised Second, regulations New York’s amended improvement agency over the conference applicability have no whatsoever when the post-removal hearing envisaged by and is to be returned to his already

N.Y.C.R.R. 450.14 discussed. parents. We see no basis for this distinc- New July City As of which, believe, tion erroneously we confuses parents’ request, at the foster as a provided, the standard which evidence is to be supplement agency or to the substitute for judged process by gath- and the which it is conference, “independent re- pre-removal ered. No matter where he is to placed, be “in view” conducted accordance well informed decision but help cannot concepts process.” of due Its salient fea- interests,” promote child’s “best tures, in an internal as set forth memoran- parties all seek to advance. (1) August are as follows: dum supervisory is heard before a the review Third, it unnecessary likely is coun- previous who has had no involve- official terproductive provide duplicate hearings, child; ment with the decision remove the pre-removal and a second after (2) parents both the foster and the recognize event. We City New York may represented counsel and each operating was within the constraint of a evidence; (3) witnesses and may present all 450.14, regulation, statewise N.Y.C.R.R. § sworn, stipulated witnesses must be unless which it had no authority abrogate. We otherwise, testimony subject all note, however, that the welfare of the child cross-examination; (4) counsel for the fos- is best aby speedy served and final decision allowed to examine ter must be as to his fate. agency’s support files used to portion Fourth, participation City’s in New York child; (5) proposal to remove the either “independent review” is limited to the fos- stenographic record of tape recording ter the agency representative. kept and made availa- hearing must be In order to insure that all cost; relevant informa- (6) a written parties ble to the presented examiner, tion is decision, reasons, supported by must be ren- days biological parent the child and within five and must include a should be dered Moreover, reminder to the foster heard well. be advisa- 10, supra. corpus petition custody Family 17. See note or a under assuming, arguendo, Court Act even It is for this reason that we are unable to the above remedies would available to a agree that a consti- with intervenors’ assertion parent prior to the removal of the foster tutionally adequate provided recourse child. through petition for habeas 286 circumstances, POLLACK,

ble, Judge for the District (dissenting): under certain representative an adult agency appoint This is a suit seeking declaratory judg- of the the interests better to articulate (SSL) 383(2) ment that New York and §§ determination, making In child. 18, Codes, Rules, Title and New York agency carefully consider the child’s should Regulations (N.Y.C.R.R.) and 450.14 § are ability effectively and age, sophistication face ap- unconstitutional on their and as feelings. own true communicate his plied seeking injunctive against relief complaint their enforcement. however, not, necessary that It on grounded allegations sections, attorney. “The representative be an chosen prescribe procedures for the separa- . . . inevi- insertion of counsel would tion of foster children their from foster tably give adversary a more proceeding parents, deprive plaintiffs of McDonnell, process east,” 539, Wolff v. protection equal in violation Fourteenth For the Amendment. reasons (1974), points Mrs. which as Buttenwieser shown hereafter the complaint must be out, impede dis- might well the effort elicit missed. personal information re- the sensitive and Thus, do not quired. we hold that trial- scheme, statutory applicable as that

type hearing, provided such now state, throughout provides most of the City, requisite. is constitutionally New Department the local Public Welfare or any Brewer, Morrissey private acting authorized on its be- Indeed, 33 L.Ed.2d may, half at any up years time to two after we to impose any pre-or- are reluctant placed care, a child has been in foster in its upon the dained structure endeavor of discretion and on days’ notice, ten written trained social workers to evaluate the often order the removal foster child from ambiguous of a child’s indices emotional home in foster which he or she has been psychological attachments develop- placed. (3), 383(2), SSL (1976 §§ Rather, we ment. believe the sounder Supp.). Following notice impending course is to allow various defendants-1— removal, parents may request a opportu- state and local officials —the first conference a social services official nity to formulate suitable to given and are reasons removal and professional compatible their own needs and express opportunity to their an views opinion. with the set principles forth in this thereon. The child not be removed from days home until three after therefore, summary, In we conclude that the conference. Written notice of the deci- 383(2) Law New York Service Social §§ sion be must sent to the foster 450.14, presently N.Y.C.R.R. five days later than after the conference operated, infringe the unduly constitutional which must contain advice their rights of children. Defendants appeal Department. to the N.Y.C.R.R. enjoined removing any children 450.14(a-e). A decision to remove may certified class from foster homes appealed Department, by “any per- in which have been unless and aggrieved”, Department son and the must hearing they grant pre-removal until case, give appellant review op- principles accord set forth above. with the portunity for a fair and render a course, not in today Of decision does our within thirty days. 400(2) decision SSL § any way authority of the State to limit the (1976 Supp.). A parent has been held summarily emergency act situations. an “aggrieved person” and where Family Act are finally administrative remedies ex- Butten- Mrs. Helen L. court thanks hausted, Court review by way is available as as- wieser valuable assistance for her proceeding, of an Article 78 CPLR 7801 et signed counsel. seq., Supreme before the New York Court. W, In on re 77 Misc.2d Order to be taken submission. N.Y.S.2d 245 Ct.N.Y.Co.1974). Additionally, af- Since the (Family commencement of suit, this law New City parentage months of foster foster revised its pro- ter 24 removal cedures when the granted statutory right to child is to be parents are some- where other than involving the with its own any proceeding parents. “intervene” in procedures These new 383(3) (1976 grant to custody par- of the child. SSL foster procedural ents most of the protections corpus pre- review is also re- Supp.). Habeas quested by plaintiffs in this law available at the instance of either suit: a sumably parent foster receives detailed notice parent or the foster child. N.Y. the foster child, intent to remove a the reasons for the seq.1 7001 et CPLR §§ removal, intended and the right to a fair foster-parent-plaintiffs contend that hearing by City’s Department of Social procedures deprive “liberty them of these Services. The parents foster have access to process interests without due property” Agency reports to be used at the hearing. specific liberty interest which of law. The parents Foster can and cross-exam- to right privacy. assert is the familial ine witnesses. Agency determination that after one Plaintiffs insist record; must be based on the its writ- care, no child should be removed foster ten decision must be served within five days prior home without notice from a foster of the hearing; and the child cannot be adversary hearing an because emotional at- moved in the interim. A recording of the have formed that time which tachments hearing is made and is available at cost. at liberty arbitrarily the state should All members of the agree Court upset. to there is plaintiffs’ no merit argument Plaintiffs-foster-parents initially sought that the realities the foster care system, friend,” represent, as “next to interests as presently administered in New York However, of their foster children as well. State, justify the finding of an expectation interest, any possible to forestall conflict of akin to a “property interest” that their role Judge appointed Carter Helen L. Butten- parents as foster will not be abruptly and independent wieser as counsel summarily terminated. See Board of Re capacity children. In that she has consist- gents Roth, 564, 92 2701, 33 ently argued that the foster (1972). Each parent constitutionally cognizable interest inde- signed, upon assuming responsibility for his pendent of those of the foster children and respective child, or her a contract adversary hearing proper not the which reserves Agency to the right forum to determine the “best interest of recall the “upon request, realizing that the child.” such request will only be made good reason.”2

The plaintiffs-foster-parents, in attempt- ing rights in this action to obtain to certain Moreover, plaintiffs’ assertion that before a child be removed foster home is entitled to the same constitu- home, from their no matter what the cir- tional long granted deference as that home, parents’ cumstances of the foster are more biological family traditional because seeking legislative in effect relief. recent studies conclude that the “family” (1976 1. Under Social Services Law child from the foster home within 24 months of Supp.) Family required the New York Court is course, parentage. Of the observations to hold a to review the foster care principally in the text above are relevant with status of foster child after 18 months of respect to an assertion of an “entitlement” and, continuous care in the same foster home parent-child the children or the foster relation- then, every least 24 months. The foster ship. property-like Such a interest is to be parties partici- are made “entitled to distinguished “liberty” from an assertion of a pate proceeding.” 392(4) (1976 Supp.). Stanley interest similar to that asserted in Illinois, 2. The statutes above and outlined under attack fairly put here also the foster on notice summarily State’s remove the Having decided that psychological be conceived as a can best have no children, entitlement their foster question and an entity, presents a novel the Court declines to decide the debate sur- interesting social debate. rounding plaintiffs’ requested extension ask this to extend them seemingly Illinois, of Stanley supra; an extension afforded to the protection the process plaintiffs which would invest awith “liber- illegitimate child father of an ty” interest either or children the 645, Illinois, 92 405 U.S. Stanley v. relationship entering itself. Instead of that (1972). 1208, an exten 31 L.Ed.2d 551 Such debate, the Court departs from the better adopt principle long that has sion would a part claims, plaintiffs’ of as they focused foster care to the State’s anathema allegations are on of unconstitutionality psychological parent/child re policies. from the viewpoint of the parents. amorphus one, not is an some lationship The Court then rests its decision on a char- can be defined or ex thing precisely that of acterization the foster children’s interest plained. The New York Courts have virtu that by has been denied the rep- children’s notion ally unanimously refused the of resentative, Mrs. Buttenwieser. adoption” “common law and have stated Court’s opinion anticipates question a of that, statutory scheme, a in absence of constitutional law in advance of the necessi- adoption whereby is the means the —that ty deciding of it. It holds over the objec- parent of or relationship status or child is tion representative of the children in persons by created between not so related this suit that the foster children have a permitted. Malpi nature —is not Matter of “liberty” interest in their relationship with ca-Orsini, 568, 570, 36 N.Y.2d 370 N.Y.S.2d parents. the foster The position of the 511, (1975); 331 N.E.2d 486 Landon v. Mo by children taken the Court espoused is torola, Inc., 18, 38 A.D.2d 326 N.Y.S.2d 960 parents the foster who have standing no 1971).3 (3d Dept. to the assert children’s No interest.4 one Ullman, Appellate Depart- 493, Division the Second ston v. 318 U.S. 63 S.Ct. 87 recently (1943). ment has a generally, refused reverse Trial L.Ed. 603 Eisenstadt v. ordering Baird, 438, 443-46, 1029, Term decision two of the 405 U.S. 92 S.Ct. 31 (1972); Jackson, this their natural mother. Lhotan, to return their action foster children to L.Ed.2d 349 U.S. In Barrows v. 1031, State ex rel. Wallace v. (1953). 73 S.Ct. 97 L.Ed. 1586 (2d 51 A.D.2d light representation N.Y.S.2d the of the children 1976). Dept., In that decision the dis- holding Mrs. Buttenweiser and the Court’s that rejec- part cussed rationale behind independent representative required an concept adoption tion of the of common-law process hearing the foster child at the due orders, it parents. of foster grounds case waiving there can be general parents rule in . the foster a seri- this case. must make attempt encourage, discourage, ous By appointment not of Mrs. Buttenweiser the of the improvement of relations recognized severability between Court has charge a children under their and mother claims of foster See Rule and the foster children. trying who family the bonds of reestablish 17(c), Fed.R.Civ.P.; Wright portion of Miller, love and A concern. Federal Practice and Procedure § love must to their natural have for the children that (1971). at 774 cannot Therefore the foster easing their return directed towards standing now invested with as an parent. circum- Whatever exception ground to the Raines rule on the that fabric, family it should stances will rend the their interests are not severable those not be parents, result of actions of Sedler, Standing the children. See to Assert delicate who taken on their have Court, Supreme Constitutional Jus Tertii in the promise responsibilities to do on the solemn seq. (1962); Note, 7T Yale L.J. et otherwise. Standing Tertii, to Assert Constitutional Jus charged with So it is that foster Harv.L.Rev. forming very psychological duty to avoid recognition The Court’s of some interest in justi- they present relationship here as the children other than that asserted their pre-removal hearing. fication for independent representative betrays herein significant question expressed frequently confusion over the Supreme when Court has 4. The require independent person a child general does and does not rule that does representation rights standing to assert the under the Due Process Clause. constitutional Raines, Apparently requires independent a child United another. (States 21-22, (1960); representative hearing required by 4 L.Ed.2d524 Tile- 80 S.Ct. standing Realizing children claim is moving into un- require process protection sought the due seas, chartered the Court states “we are therefore, and, making claim herein is reluctant to impose any pre-ordained struc- principle necessary it is not on well-settled upon ture the endeavor of trained social issue. appropriate reach workers to evaluate the ambiguous often indices of a child’s emotional attachments ‘anticipate ques “The Court will not psychological development. Rather, we of constitutional law in tion advance of believe the sounder course is to allow the necessity of it.’ deciding Liverpool, various defendants —state and local offi- v. Emigration N. Y. & P.S.S. Co. Com opportunity cials —the first to formulate 39; missioners, procedures suitable to profession- their own 899; 355, 28 L.Ed. Abrams v. Van compatible al needs and with the principles Schaick, 188; 293 U.S. 55 S.Ct. set forth in opinion.” this 278; L.Ed. Wilshire Oil Co. v. United States, This undoubtedly result will 55 S.Ct. come as a surprise, shock, L.Ed. 1329. ‘It is not if not a parties. the habit of the No to decide questions court of a one has constitu contended for the view reached in tional nature unless absolutely opinion, neces the Court’s except possibly to touch sary to the decision of the case.’ Bur subject on the matter tangentially. The States, ton v. United 196 U.S. 295.” parties should certainly have given been a 243, 245, 25 S.Ct. 49 L.Ed. 482. Ash hearing (a briefing opportunity) on the wander v. Valley Tennessee Authority, point the opinion. made They should 288, 346-7, 297 U.S. 56 S.Ct. have been alerted to the possibility that the (1936) J., 80 L.Ed. (Brandéis, conc might Court undertake to consider the “un- urring).5 of constitutionality” the viewpoint from the the of foster children, On the basis of its of resolution this antic representative whose was not asserting any ipated question the Court decides that the such contention. preremoval procedures presently employed the If Court must reach the interest of by the State are constitutionally defective children, the it must face a situation in a child is entitled to a hearing which at every step in the foster sys- care “whenever and as soon as the child has been (whether tem before or after the a 24 month placed in foster long home for term care period) the whenever, represented child only by reason, or the any for he has re State or the parents. foster He a mained in foster home receives period for a of one independent no notice and year or has Pursuing result, represent- more.” which short, any stage; ative at every has earmark he legislative action, of has no the independent Therefore, Court rules that role. if ques- “defendants the enjoined from tion removing any properly presented, were foster children the Court foster homes in would to have decide have whether or not placed State, long for term parens patriae care or in in its capacity, which they acts as have lived for year more than representative a sufficient unless for the child and * they grant and until a preremoval hearing.” whether the Due Process Clause despite of plaintiffs’ analogy Stanley Illinois, Court the views the children’s inde- supra. pendent representative hearing in the of this ac- generally Army Municipal Court, Rescue short, allowing parents standing tion. In foster 549, 568-75, 91 L.Ed. of here to assert the interest the children serious- ly finding undermines the Court’s later that the * require representation independent opinion quoted children of The Court’s draft was as above. process hearing. foster holding apply has limited its It since those children who have resided with jurisprudence principle of constitutional 5. This year. of for authority one set at least precisely invoked the Court surrounding is nonetheless the same. of dissent in its avoidance the debate striking example flexibility of the need for hearing for foster adversarial as mandates application Due Process children. Neither the Court’s adherence to Clause.7 representative independent an Since approach by requiring the old Due Process required, inevitably will representative, nor its re- independent system the delicate imposed on Court provide guidelines for the fusal to further ap- for the model inapposite care an envisions, type taps poten- Clause; mod- Process the Due plication flexibility. tial for such of the indi- balancing requires the el which fact, has, improperly re- If the Court procedural safe- need for apparent vidual’s child, party represent quired a third apparent need State’s guards analysis can only the remainder then summary action.6 legislation. holding In described very structure State’s requires child’s interest of this applicability system belies care a formal voice in decision purports that at least system In a model. of foster to remove the child after actu- shows that it herein (and the evidence parentage or whenever child is interests of does) represent “the best ally care,” “long with them for term dis- be no such facile there can the child” express policy a social first undertakes child, the interest between tinction preference year for a one rather than the State, hand, of on on period, then present statutory two context in the traditional Unlike the other. vague hedges by promulgating standard been Process Clause has the Due which (as system) apparently in this yet undefined opposition necessary is no litigated, there parent-child to relation- meant test here. The the child and the State between incipieney. from their There is no ships workers should professional social State’s a use of the support for such Fourteenth repre- rejected adequate be as easily not so Amendment. con- (if in this foster children sentatives relying on the disinterested Rather than requires Clause strict the Due Process text professional of social work- judgment social representa- all). Their “representation” aegis of well-conceived acting ers under the not, on the simply has of those children tion statutes, tried and tested the Court’s'deci- case, be been shown to so hearing of this legalistic, psycho- embroils the child in sion require to the introduction of inadequate theorism; leaving pawn logical the child a represent to the child. party a third game from which the child should be system of spared. involved evidence has shown that The interests No sensitive, inchoate, procedures or have too too are conducive to care are child model; separations or hasty and there resulted in ill-advised process old due fit this viewpoint the foster child. presents a from the of that this case little doubt seems Burson, rules, ess,” legal 91 S.Ct. v. 402 U.S. unlike some is not a 6. See Bell technical (1971); Richardson Pe conception 29 L.Ed.2d 90 with a fixed content unrelated to rales, 91 S.Ct. 402 U.S. time, place It and circumstances.’ is ‘com Note, Specifying (1971); the Procedures reason, history, past pounded of course of By Required Limits on Process: Toward Due . . . .’ Joint Anti-Fascist Comm. decisions Balancing, Interest 88 Harv.L.Rev. Use of McGrath, 341 U.S. 162-163 [71 (1975). 624, 643, (concurring opinion).” 95 L.Ed. 817] Workers, Local 473 v. Cafeteria & Restaurant process negates any very of due 7. “The nature 1743, 1748, McElroy, universally 367 U.S. 81 S.Ct. procedures ap- concept inflexible also, (1961). every imaginable v. Wein plicable . 6 L.Ed.2d 1230 Frost situation. process may require 1975); (2d Friendly, procedures berger, un- what 515 F.2d Cir. begin any given J., Hearing”, set of circumstances must der H. “Some Kind U.Pa.L.Rev. precise nature of Frankel, M., a determination (1975); with The for Truth: Search government as well as of function involved View, Umpireal 123 U.Pa.L.Rev. An private affected interest (1975). ‘ proc- governmental . . . “[D]ue action. right The and dis- time when the Due cross-examination Process Clause was covery presumably which would procedures, used this Court to strike down laws now be afforded to foster after one which thought unreasonable, were is, not been shown to be in the best year, have unwise incompatible partic- some interests of the child. ular economic or social philosophy. . . . We have returned original to the consti- imply any I do not wise that tutional proposition that courts do not have the to be heard —to should not substitute their social and economic be- That is not what is at stake. participate. judgment liefs for the legislative bod- is question before the Court ies, who are elected to pass laws. . . . procedural layers whether obstruction We refuse to sit as a “superlegislature to to the foster should be afforded weigh legislation,” the wisdom of we impede judgments reasonably reached emphatically refuse to go back to the independent agen- concerned disinterested time when courts used the Due Process professionals by starchy cies and less meth- Clause laws, “to strike down state regula- preremoval ods. The conference and the tory of business and conditions, industrial procedures leading any thereto are not because they may unwise, be improvi- instance shown have been defective from dent, or out of harmony with particular viewpoint of the foster child. It thought.” school of .... expect unrealistic to that a pre-teenage . statute wise or unwise. child, example, is to invoke the “hear- relief, needed, But if lies not with contemplated by majority ing” decision. us but with the body constituted pass appointed representative And if an adult laws for the State .... Ferguson needed to articulate the interest of the v. Skrupa, 726, 729-732, existing child—the accord the 1028, 1030, 10 process. needed due This warning applies equally well legislature spawned State social as to the sphere. economic (in statutory scheme While par- that makes the foster years the first two of foster parentage) relationship possible ent-child it has made the may conceivably be wiser to pre-ter- hold a rational decision that until it is 24 months mination parties out, hear the it relationship old this can never be sufficient- not, thereby, constitutionally required. ly strong require pre-termination hearing The evidence that, has not shown protection. during While the Court should not ab- years, those first two responsibilities dicate its constitutional the foster child are not adequate afforded improperly legislature, defer to a state process. The choice of legislature’s providing a Court should not overturn the pre-termination hearing after adequate proof decision absent it parentage rather than short, the two year irrational or unfair. In recog- it can period now embodied in 383(3) SSL legislature’s superior nize the State fact- through intervention, finding ability agree can is a with that choice that seems particularly legislative legislature’s avoiding decision without character. obligation to determine what does and does satisfy

not the Due Process Clause. I would complaint. dismiss the Supreme against Court has warned return to the days proc- of substantive due

ess. the system government

Under created Constitution,

by our legisla- it is up

tures, courts, to decide on the wisdom utility legislation. There was a

Case Details

Case Name: Organization of Foster Familes for Equality & Reform v. Dumpson

Court Name: District Court, S.D. New York

Date Published: Oct 12, 1976

Citation: 418 F. Supp. 277

Docket Number: 74 Civ. 2010

Court Abbreviation: S.D.N.Y.