Appendix — Smith v. Organization of Foster Families for Equality & Reform

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Supreme Cour, U.S. |

FILED

76-130

7 6 AUG 9 1976

| MICHAEL RODAK, JRACLERK |

IN THE a

Supreme Court of the United States

OCTOBER TERM, 1976

= %G= 5193

JAMES DUMPSON, vy ter Ay as Administrator of the NEW YORK CITY HUMAN

RESOURCES ADMINISTRATION ; ELIZABETH BEINE, individually and as Direc-

tor of the NEW YORK CITY BUREAU OF CHILD WELFARE, and as Acting

Assistant Administrator of NEW YORK CITY SPECIAL SERVICES FOR CHIL-

DREN ; ADOLIN DALL, individually and as Director of the DIVISION OF INTER-

AGENCY RELATIONSHIPS of the BUREAU OF CHILD WELFARE; and JAMES

P. O'NEILL, individually and as Executive Director of CATHOLIC GUA DIAN

SOCIETY OF NEW YORK; BERNARD SHAPIRO, individually and as Executive

Director of the New York State Board of Social Welfare; ABE LAVINE, individually

and as Commissioner of the New York State Department of Social Services, and JOSEPH

D’ELIA, individually and as Commissioner of the Nassau County Department of Social

Services, Appellants-Defendants,

NAOMI RODRIGUEZ; ROSA DIAZ; MARY ROBINS; DOROTHY NELSON SHA-

BAZZ; and LILLIAN COLLAZO, on behalf of themselves and all others similarly

situated, A ppellants-Intervenors,

DANIELLE and ERIC GANDY, RAFAEL SERRANO, and CHERYL, PATRICIA,

CYNTHIA and CATHLEEN WALLACE on behalf of themselves and all others

similarly situated, ; A ppellants-Plaintiffs,

against

ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND REFORM, MADE-

LINE SMITH, RALPH and CHRISTIANE E. GOLDBERG, and GEORGE and

DOROTHY LHOTAN, on behalf of themselves and all others similarly situated,

all others similarly situated, Appellees.

APPELLANTS’ JOINT APPENDIX TO

JURISDICTIONAL STATEMENTS

LOUIS J. LEFKOWITZ

Attorney General of the State of New York

Attorney for Appellants Shapiro and Lavine

HELEN L. BUTTENWIESER

Attorney for Appellants Danielle and Eric Gandy,

Rafael Serrano and Cheryl, Patricia, Cynthia and

Cathleen Wallace

MARTTIE L. THOMPSON

Community Action for Legal Services, Inc. __

Attorney for os Rodriguez, Diaz, Robins,

Shabazz and Collazo

W. BERNARD RICHLAND

Corporation Counsel of the City of New York

Attorney for Appellants Dumpson, Biene and Dall

INDEX

PAGE

a oD ben bddds cancdcaecancaenees la

Appendix ‘‘B’’, Dissenting Opinion ................ 21a

Appendix ‘‘C’’, Order and Judgment .............. 36a

Appendix ‘‘D’’, Notice of Appeal to the Supreme

Court of the United States .................... 39a

Notice of Appeal (Bernard Shapiro and Abe

EE 60 Fate Dedesbadcsccdldaciscanen 39a

Notice of Appeal (Gandy, Serrano and Wallace) 4laa

Notice of Appeal (Rodriquez, Robins, Shabazz

EET dao <a dun bidccsyi as seadiwaes 4la

Notice of Appeal (Dumpson, Beine and Dall) .. 41g

Re Es GD caved icdeccinctesuceneis 42a

Appendix ‘‘F’’, New York Law and Regulations ... 5la

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RE MU 5 BOGE 6. ks vcccccvnstavavenia cies 69a

Appendix “A”, Opinion.

UNITED STATES DISTRICT COURT

SoutTuHern District or New York

74 Civ. 2010

ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND

REFORM; MADELINE SMITH, on her own behalf and as next

friend of DANIELLE and ERIC GANDY; and RALPH and

CHRISTIANE GOLDBERG, on their own behalf and as next friend

of RAFAEL SERRANO; and GEORGE and DOROTHY LHOTAN,

on their own behalf and as next friend of CHERYL, PATRICIA,

CYNTHIA and CATHLEEN WALLACE, on behalf of themselves and

all others similarly situated, ,

Plaintiffs,

JAMES DUMPSON, individually and as Administrator of the NEW YORK

CITY HUMAN RESOURCES ADMINISTRATION; ELIZABETH

BEINE, individually and as Director of the NEW YORK CITY

BUREAU OF CHILD WELFARE, and as Acting Assistant Admin-

istrator of NEW YORK CITY SPECIAL SERVICES FOR CHIL-

DREN; ADOLIN DALL, individually and as Director of the

DIVISION OF INTER-AGENCY RELATIONSHIPS of | the

BUREAU OF CHILD WELFARE; and JAMES P. O’NEILL, indi-

vidually and as Executive Director of CATHOLIC GUARDIAN

SOCIETY OF NEW YORK; BERNARD SHAPIRO, individually and

as Executive Director of the New York State Board of Social Welfare;

ABE LAVINE, individually and as Commissioner of the New York

State Department of Social Services, and JOSEPH D’ELIA, individually

and as Commissioner of the Nassau County Department of Social Services,

Defendants,

NAOMI RODRIGUEZ; ROSA DIAZ; MARY ROBINS; DOROTHY

NELSON SHABAZZ; and LILLIAN COLLAZO, on behalf of them-

selves and all others similarly situtated,

Intervenors- Defendants.

Before Lumsarp, Cireuit Judge, and Pottack and

Carter, District Judges.

Appendiz ‘‘A’’, Opinion.

APPEARANCES:

Marcia Rosrnson Lowry, Esq. and Peter Brenstocg,

Esq.,

New York Civil Liberties Union, .

Attorneys for Plaintiffs Organization of Foster pera

ies for Equality and Reform; Madeline Smith; Ralp

and Christiane Goldberg; George and Dorothy

Lhotan; on behalf of themselves and all others similarly

situated, rae

Office and P.O. Address:

84 Fifth Avenue, New York, N.Y. 10011

Heten L. BuTTreENWIESER, Esq.,

Attorney for Plaintiffs Danielle and Eric Gandy ;

Rafael Serrano; Cheryl, Patricia, Cynthia and Cath-

leen Wallace; on behalf of themselves and all others

similarly situated,

Office and P.O. Address:

575 Madison Avenue, New York, N.Y. 10022

Aprian Burke, Esq., Corporation Counsel,

Attorney for Defendants James Dumpson and Eliza-

beth Beine

Office and P.O. Address:

Room 1637, Municipal Building, New York, N.Y. 10007

By: Exuiorr Horrmayn, Esq, Assistant Corporation

Counsel

Joun F. O’Suavcuyessy, Esq., County Attorney of

Nassau County

Attorney for Defendant James P. O’Neill

Ofiice and P.O. Address:

1 West Street, Mineola, New York

By: James GaLLacHeER, Esq.

Appendiz ‘‘A’’, Opinion.

Louis J. Lerxowirz, Attorney General of the State

of New York and Samuet A. Hrrsnowirtz, First As-

sistant Attorney General,

Attorneys for Defendants Bernard Shapiro and Abe

Lavine

Office and P.O. Address:

Two World Trade Center, New York, N.Y. 10047

By: Sranuey L. Kantor, Esq.

Magrtiz L. Txompson, Esq. and Tosy Goick, Esq.

Attorneys for Intervenors-Defendants,

Office and P.O. Address:

Community Action for Legal Services,

335 Broadway, New York, N.Y. 10013

By: Louise Gruner Gans, Esq.

Lumsarp, Circuit Judge:

The Organization of Foster Families for Equality and

Reform (OFFER) and three individual foster families

bring this class action for injunctive and declaratory re-

lief seeking the invalidation of New York Social Services

Law §§ 383(2) and 400, and N.Y.C.R.R. § 450.14. Plaintiffs

allege in their complaint that the above provisions violate

both the Equal Protection and Due Process Clauses of the

Fourteenth Amendment in that they authorize the state to

remove foster children from their foster homes without

affording a prior hearing to either foster child or foster

parents.’

Plaintiff foster parents initially sought to represent, as

“next friend,” the interests of their foster children as well.

However, to forestall any possible conflict of interest,

Judge Carter appointed Helen Buttenwieser as independ-

ent counsel for the foster children, advising the parties of

his action by letter dated October 29, 1974. In that ca-

pacity, she has consistently argued that the foster parents

Appendiz ‘‘A’’, Opinion.

have no constitutionally cognizable interest independent of

those of the foster children and that an adversary hearing

is not the proper forum to determine the “best interest of

the child.”* The defendants—government officials at the

state and local level and the Executive Director of the

Catholic Guardian Society—are responsible for adminis-

tering the foster care system within their respective juris-

dictions. In addition, five biological mothers of children

currently in foster care were granted leave to intervene in

these proceedings on behalf of themselves and all others

similarly situated.

The present statutory scheme, applicable throughout

most of the state, provides that the local public welfare

department or an authorized private agency acting on its

behalf‘ may, in its discretion and on 10 days notice, order

the removal of any foster child from the foster home in

which he or she has been placed. Social Services Law

§§ 383(2) and 400. After having been informed of the

impending removal in a printed notice which contains no

space for any detailed elucidation of the reasons for that

removal, the foster parents may request a conference with

a “public official” of the local social services department at

which they have an opportunity to express their dissatis-

faction with the agency’s decision but no formal manner

is provided whereby they may contest it. N.Y.C.R.R.

§ 450.14.

Although the foster parents may be accompanied to the

conference by “a representative,” they may not present or

cross-examine witnesses, nor may they inspect the agency

files even if records contained therein formed the predicate

for the administrative decision. Yet, despite these handi-

caps, the burden is upon the foster parents to submit “rea-

sons why the child should not be removed.” The agency,

by contrast, has no countervailing obligation to provide an

articulated rationale for removing the child. N.Y.C.R.R.

Appendiz ‘‘A’’, Opinion.

§ 450.14. There is evidence in the record which indicates

that rarely, if ever, do these pre-removal conferences re-

sult in the reversal of the initial decision. Post-removal,

the foster parents are entitled to a “fair hearing,” Social

Services Law 4 400(2), and then, if still “aggrieved” by the

agency action, they may obtain judicial review.

Plaintiffs contend that these procedures deprive them of

“liberty and property” interests without due process of

law. The specific liberty interest which they assert is the

right to familial privacy. E.g. Meyer v. Nebraska, 262

U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510

(1925) ; Griswold v. Connecticut, 381 U.S. 479 (1965). Cog-

nizant that each of the Supreme Court decisions in this

area dealt with a more traditional, biological family, plain-

tiffs rely on several recent studies which functionally

define the family as a psychological rather than a biologi-

cal unit. Goldstein, Freud and Solnit, Beyonp tHE Best

INTERESTS OF THE CuHiLD. Plaintiffs insist that after one

year of foster care, emotional attachments have formed

which the state should not be at liberty arbitrarily to

upset. Plaintiffs further assert that the statistical evidence

as to the length of the average child’s stay in foster care

creates an “informal tenure” system raising legitimate ex-

pectations that their role as foster parents will not be

abruptly terminated.’ Perry v. Sinderman, 408 U.S. 593

(1972). To illustrate the arbitrary manner in which they

claim the outlined statutory provisions can operate, plain-

tiffs offer the example of their own personal involvement

with the foster care system.

Madeline Smith is a 53 year old widow who lives in East

Elmhurst, New York. She became an approved foster

parent® under the supervision of the Catholic Guardian

Society of New York in 1969. On February 1, 1970, she

took Eric and Danielle Gandy into her home as foster chil-

dren. At the time, Eric was four and Danielle two. Plain-

Appendiz ‘‘A’’, Opinion.

tiffs claim, and defendants do not dispute, that Danielle

has never seen her natural mother and Eric no longer re-

members her. Both children, who are legally free for

adoption consider Mrs. Smith to be their mother.

Nevertheless, on March 29, 1974, Mrs. Smith was notified

by letter from the Catholic Guardian Society that Eric and

Danielle were to be removed from her care because “it is

now in their best interests to leave your home.” The

agency’s concern, not shared by Mrs. Smith, was that her

arthritis would interfere with her undeniably well-meaning

efforts to supervise the increasingly active behavior of

Erie and Danielle. Although Mrs. Smith signed a waiver

of her right to a pre-removal conference, she made it

abundantly plain that she had no intention of surrendering

the children. When told that they would be forcibly taken

from her, she obtained a lawyer and began the instant

litigation. To date, the children remain in Mrs. Smith’s

home—originally the result of a temporary restraining

order, later the product of a voluntary stipulation among

the parties.

Plaintiffs Mr. and Mrs. Lhotan are similarly authorized

foster parents; they, however, are under the supervision

of the Nassau County Department of Social Services

Children’s Bureau. On September 4, 1970, Cheryl and

Patricia Wallace were placed in the Lhotan home; two

years later they were joined by their younger sisters, Cyn-

thia and Cathleen. By all accounts, most notably that of

the children, the reunion was a happy one for all concerned.

Indeed, when Mrs. Lhotan was told on June 26, 1974 that

the children were to be removed from her home ten days

hence, the only reason given was that the four girls were

growing too attached to their foster family. Mrs. Lhotan

was informed that Cheryl and Patricia were to be re-

turned to their biological mother while Cynthia and Cath-

leen were to be transferred to another foster home.

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Appendia ‘‘A’’, Opinion.

However, on July 8, 1974, in response to a request by

the Lhotans, Judge Carter issued a temporary restraining

order barring the removal of the children which had been

scheduled for the next day. That order remained in effect

until March 3, 1975, when it was dissolved by this court.

Meanwhile, Mrs. Wallace, the biological mother, had begun

habeas corpus proceedings in the state court to secure

the return of her children. On February 23, 1976, the

Appellate Division for the Second Department upheld a

lower court ruling mandating immediate implementation

of the plan devised by the Nassau County Department

of Social Services Children’s Bureau. The time for appeal

of that decision has not yet passed.

Mr. and Mrs. Ralph Goldberg, the final set of plaintiff

foster parents, face a less imminent threat. They have,

since July 1969, taken care of Rafael Serrano, then six

years old. Prior to his placement in the Goldberg home,

Rafael had lived with a succession of foster families after

having been abused by his natural parents during the time

that he remained with them. Although the Goldbergs have

been repeatedly told that they have done an excellent job in

providing a healthy environment in which Rafael might

grow and develop, they now fear, on the basis of various

unofficial statements, that the Bureau of Child Welfare

intends to remove Rafael and place him with his aunt.

While the Goldbergs have yet to be officially notified of

any such plan, they join in this action to insure that they

will be entitled to a pre-removal hearing if and when such

a decision is made.

Neither defendants nor intervenors dispute the strength

of the emotional ties binding plaintiffs and their foster

children nor the loss that will be felt if those ties are

severed. Both defendants and intervenors insist, however,

that the question now before us is and must be more nar-

rowly focused. We agree. As a statutorily ordained court

Appendiz ‘“A’’, Opinion.

we must limit our inquiry to a determination of whether

plaintiffs have established a deprivation of life, liberty

or property sufficient to invoke the protection of the Due

Process Clause.

We find no merit in plaintiffs’ argument that the reali-

ties of the foster care system, as presently administered

in New York State. justify their expectation that their

role as foster parents will not be abruptly and summarily

terminated. See Board of Regents v. Roth, 408 U.S. 564

(1972). The most obvious and formidable obstacle to

plaintiffs’ contention is the agreement that each of them

signed upon assuming responsibility for their respective

foster children. The contract employed by the Catholic

Guardian Society, typical of those used throughout the

state, reserves to the agency the right to recall the child

‘‘upon request, realizing that such request will only be

made for good reason.’’ While such a provision is not

dispositive, Perry v. Sinderman, 408 U.S. 593 (1972), the

discretionary authority which it vests in the agency is on

its face incompatible with plaintiffs’ claim of legal en-

titlement. We are unpersuaded by plaintiffs’ efforts to

equate an open-ended relationship with one of indefinite

duration. Nor does evidence showing that the average

child placed in foster care remains within the system for

approximately 414 years’ support the plaintiffs’ position.

Cf. Perry v. Sinderman, supra.

We find considerably more difficult plaintiffs’ assertion

that the foster home is entitled to the same constitutional

deference as that long granted to the more traditional

biological family.* Plaintiffs base their contention upon

several recent studies which conclude that the ‘‘family’’

ean best be conceived as a psychological entity, uniquely

characterized by the emotional interdependence of each

of its members. E.g. Goldstein, Freud and Solnit, Beyvonp

THE Best InTerEsTts or THE CuiLp. Plaintiffs argue that

Appendix ‘‘A’’, Opinion.

it is this interdependence, born out of daily and intimate

contact, which best explains the family’s pre-eminent

constitutional position. Plaintiff foster parents further

insist that their relationship with their foster children

fully satisfies this functional definition, although custody

of the child is vested in the authorized agency. Social

Services Law §$ 383 (2). They point to decisions such as

Stanley v. Illinois, 405 U.S. 645 (1972), which, they claim,

indicate the Supreme Court’s willingness to look behind

legal formalities when inquiring into the existence of a

fruitful family life.*

While the intervenors and defendants rely on precisely

the same Supreme Court opinions, they emphasize that

the holding of each was limited by its facts to biological

families. Intervenors, in particular, strongly protest any

implication that the contractual relationship between

foster parent and foster child is, or ever can be, the

equivalent of the relationship between a mother and the

child to whom she has given birth.” Intervenors have in-

troduced affidavits from eminent experts in social work

and psychology which attack the validity of the concept

of the ‘‘psychological family.’’* The intervenors also

argue that this court would be ill-advised to create a prece-

dent which might later be applied to other foster families

less concerned and well-intentioned than those now be-

fore us.

We agree with the parties that this debate as to the

definition of the family and its role in society is an in-

teresting and important one. We need not and should

not, however, reach out to decide such novel questions

when narrower grounds exist to support our decision.

See Ashwander v. Tennessee Valley Authority, 297 U.S.

288, 341 (1936) (Brandeis, J., concurring).

We believe that the pre-removal procedures presently

employed by the state are constitutionally defective. We

10a

Appendix ‘‘A’’, Opinion.

hold that before a foster child can be peremptorily trans-

ferred from the foster home in which he has been living,

be it to another foster home or to the natural parents who

initially placed him in foster care, he is entitled to a hear-

ing at which all concerned parties may present any rele-

vant information to the administrative decisionmaker

charged with determining the future placement of the

child.“* While our decision today is perforce limited to the

class as defined in Judge Carter’s accompanying certifica-

tion order, namely all children in foster care for one year or

longer, we note that similar interests suggest a similar

result whenever the child is placed in a foster home for

long term care.**

The time has long since passed when children were con-

sidered mere chattels of the adults with whom they lived.

The foster care system itself, initiated in New York in

the latter part of, the nineteenth century, represented a

large step forward from the prior practice of institution-

alizing children with the poor and feebleminded or board-

ing them out as apprentices or indentured servants. In

any event, it is by now well-settled that children are “per-

sons’’ within the meaning of the Fourteenth Amendment

whose rights are entitled to protection against state

abridgement. In re Gault, 387 U.S. 1 (1967); Tinker v.

Des Moines School District, 393 U.S. 503 (1969); Goss

v. Lopez, 419 U.S. 565 (1975). Foremost among those

rights, as the Supreme Court has repeatedly held, is the

right to be heard before being “condemned to suffer griev-

ous loss,’’? Joint Anti-Fascist Committee v. McGrath, 341

U.S. 123, 168 (1951) (Frankfurter, J., concurring).

The basis of this right is easily understood. A hearing

dispels the appearance and minimizes the possibility

of arbitrary or misinformed action. Goldberg v. Kelly,

397 U.S. 254, 266 (1970). In cases such as these, the harm-

ful consequences of a precipitous and perhaps improvident

ee ee ee ae eee

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Appendix ‘‘A’’, Opinion.

decision to remove a child from his foster family are

apparent. Plaintiffs’ experts assert that continuity of

personal relationships is indispensable to a child’s well

adjusted development. We do not need to accept that

extreme position to recognize, on the basis of our common

past, that the already difficult passage from infancy to

adolescence and adulthood will be further complicated by

the trauma of separation from a familiar environment.

This is especially true for children such as these who have

already undergone the emotionally scarring experience of

being removed from the home of their natural parents.

Intervenors dispute the seriousness of these losses, rely-

ing principally on a longitudinal study conducted by Pro-

fessor David Fanshell of the Columbia University School ~..

of Social Work in which he concluded that there was no

statistically significant correlation between a child’s suc-

cessful development and the number of times that child

was moved within the foster care system. We find signifi-

cant, however, Prof. Fanshell’s further testimony that, ‘‘as

a professional, [I] would be against the capricious move-

ment of children.” The requirement of a hearing is de-

signed to insure no more.

Most specifically, a hearing is not, as intervenors ap-

parently fear, intended in any way to impede the right of

biological parents to regain custody of their children. The

law in New York is clear: in the absence of abandon-

ment, formal surrender for adoption or demonstrated un-

fitness, the “primacy of parental rights may not be

ignored.” People ex rel. Kropp v. Shepsky, 305 N.Y. 465,

469 (1953); see also, Spence-Chapin Adoption Service v.

Polk, supra. We do not, by our holding today, disturb

that local judgment.*

Nonetheless, we are unable to agree with intervenors’

contention that a hearing is therefore superfluous when a

foster child is to be returned to his biological parents.

12a

Appendix ‘‘A’’, Opinion.

Even under such circumstances, a hearing performs the

salutary function of providing the agency with an organ-

ized forum in which to gather information concerning,

inter alia, the frequency with which the biological parent

has been visiting his or her child. If the evidence discloses

that, despite the diligent efforts of the agency, the biologi-

cal parent has failed for more than a year to maintain

“substantial and continuous contact” with a child in foster

care, permanent neglect proceedings may be instituted and

the biological parent’s presumptive right to custody may

be forfeited. Family Court Act § 611, et seq.; In re P., 337

N.Y.S. 2d 203 (Fam. Ct. N.Y.Co. 1972). A fortiori, when

the question is whether a foster child is to be moved from

one foster home to another, the state in its parens patriae

capacity, will be better able to make an informed decision

after a hearing at which all relevant information has been

presented. The interest of the state, as parens patriae, is

therefore compatible with, rather than antagonistic to, the

requirement of a hearing. Goldberg v. Kelly, 397 U.S. at

265.

Plainly, the present pre-removal conference is not de-

signed adequately to fulfill this data-gathering function.

As outlined earlier, the foster parents are denied any right

to present evidence or witnesses, the public official with

whom they confer is already acquainted with the agency’s

version of the background facts, and the foster child whose

future is at stake does not participate. Such a scheme fails

to satisfy even the most minimal requirements of pro-

cedural due process. Escalera v. New York City Housing

Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S.

853 (1970). We do not understand the defendants seriously

to claim otherwise.

Rather, the state argues that any constitutional defect

is remedied by the post-removal “fair hearing” provided

under N.Y.C.R.R. § 450.14. We disagree. See Sniadach

v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes v.

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13a

Appendix ‘‘A’’, Opinion.

Shevin, 407 U.S. 67 (1972). It is, at the least, paradoxical

to suggest that a hearing designed to forestall the hasty

and ill-advised separation of a foster child from his foster

home can occur after that separation has already taken

place. We are unpersuaded by defendants’ contention that

a decision by the hearing examiner to reverse the agency’s

action and reunite the family effectively restores the status

quo. Such a reunion may ameliorate but it cannot eradi-

cate the injury caused by uprooting the child. Indeed, to

the degree that implementation of the hearing examiner’s

decision requires the disruption of arrangements made in

the interim, it may further exacerbate the child’s sense of

loss. It is in the best interests of the child that the risk of

such dislocations be avoided or minimized.**

We find equally without merit intervenors’ assertion that

§ 392 of the Social Services Law adequately protects the

due process interests of the foster child. Enacted in 1971,

§ 392 provides for periodic review of the status of each

foster child. One and a half years after being placed in

foster care, and every two years thereafter, the Family

Court is required to conduct a hearing upon notice to the

biological parents, foster parents in whose home the child

has lived for at least eighteen months, the child care

agency to which the child has been surrendered, and “such

other persons as the court may, in its discretion, direct.”

Following the hearing, an order must be entered incorpo-

rating one of four stated dispositional alternatives: that

the child be continued in foster care, that he be returned to

his natural parents, that proceedings be instituted legally

to free him for adoption or, if legally free already, that he

be placed for adoption with specified individuals.

Intervenors’ contend that the above procedure, when

coupled with the continued jurisdiction of the Family

Court, Social Services Law § 392(10), fully satisfies consti-

tutional requirements. We do not agree. Cf. Boone v.

l4a

Appendix ‘‘A’’, Opinion.

Wyman, 295 F.Supp. 1143 (S.D.N.Y. 1969), aff’d. 412 F.2d

857 (2d Cir. 1969), cert. denied 396 U.S. 1024 (1970).

First, and most obviously, § 392 offers no comfort what-

soever to the child in foster care for less than eighteen

months. Second, intervenors’ reasoning appears to rest

upon an unjustifiably expansive interpretation of the scope

of § 392. In In re W., 35 N.Y.S.2d 245, 248 (Fam. Ct. N.Y.

Co. 1974), the court concluded that the power to direct the

child to be continued in foster care did not encompass the

authority to order that the child be maintained in any

specific foster home.

Third, and most fundamentally, intervenors assume an

identity of interest between foster parent and foster child

which we are unwilling to accept as we have already indi-

cated by the appointment of separate counsel at the outset

of this litigation. The continuing jurisdiction of the Family

Court constitutes a safeguard against arbitrary state action

only if the proposed removal of the foster child is brought

to the court’s attention. Intervenors posit that the foster

parents will perform this function. They may well be cor-

rect in the majority of cases. But we decline to rest the

rights of the foster children upon the shoulders of foster

parents who, however well-meaning, have a personal in-

volvement and perhaps a financial interest’* which may

color their conduct. If a hearing is required, as we hold

it is, it is required in all cases and cannot be made to

depend upon the initiative of third persons.”

A similar flaw taints the amended regulations promul-

gated by New York City during the pendency of this

action. In most other respects, however, New York City’s

revised procedures represent a significant improvement

over the agency conference and post-removal hearing en-

visaged by N.Y.C.R.R. § 450.14 and already discussed.

As of July 1, 1974, New York City has provided, at the

foster parents’ request, as a substitute for or supplement

OO ee ee ee eee

15a

Appendix ‘‘A’’, Opinion.

to the agency conference, a pre-removal “independent re-

view” conducted “in accordance with the concepts of due

process.” Its salient features, as set forth in an internal

memorandum of August 5, 1974, are as follows: (1) the

review is heard before a supervisory official who has had

no previous involvement with the decision to remove the

child; (2) both the foster parents and the agency may be

represented by counsel and each may present witnesses

and evidence; (3) all witnesses must be sworn, unless stipu-

lated otherwise, and all testimony is subject to cross-

examination; (4) counsel for the foster parents must be

allowed to examine any portion of the agency’s files used

to support the proposal to removal the child; (5) either a

tape recording or stenographic record of the hearing must

be kept and made available to the parties at cost; and (6)

a written decision, supported by reasons, must be rendered

within five days and must include a reminder to the foster

parents that they may still request a post-removal hearing

under N.Y.C.R.R. § 450.14.

While the amended regulations represent a considerable

improvement over previous procedures, we note certain

deficiencies still present in New York City’s current prac-

tices. First, as alluded to above, the “independent review”

now afforded by New York City is available only upon the

affirmative request of the foster parents. We reiterate

that such a restriction is inconsistent with our holding that

it is the child’s right to avoid arbitrary dislocations which

necessitates a hearing. Whatever hearing is provided

should be provided as a matter of course.

Second, New York’s amended regulations have no ap-

plicability whatsover when the child is to be returned to

his biological parents. We see no basis for this distinc-

tion which, we believe, erroneously confuses the standard

by which evidence is to be judged and the process by

which it is gathered. No matter where he is to be placed,

l6a

Appendix ‘‘A’’, Opinion.

a well informed decision cannot but help to promote the

child’s ‘‘best interests,’’ which all parties seek to ad-

vance.

Third, it is unnecessary and likely counterproductive to

provide duplicate hearings, one pre-removal and a second

after the event. We recognize that New York City was

operating within the constraint of a statewise regulation,

N.Y.C.R.R. § 450.14, which it had no authority to abrogate.

We note, however, that the welfare of the child is best

served by a speedy and final decision as to his fate.

Fourth, participation in New York City’s ‘‘independent

review’’ is limited to the foster parents and the agency

representative. In order to insure that all relevant in-

formation is presented to the hearing examiner, the child

and biological parent should be heard as well. Moreover,

it may be advisable, under certain circumstances, for the

agency to appoint an adult representative better to articu-

late the interests of the child. In making this determina-

tion, the agency should carefully consider the child’s age,

sophistication and ability effectively to communicate his

own true feelings.

It is not, however, necessary that the chosen represen-

tative be an attorney. ‘‘The insertion of counsel . . .

would inevitably give the proceeding a more adversary

east,’’ Wolff v. McDonnell, 418 U.S. 539, 570 (1974), which

as Mrs. Buttenwieser points out, might well impede the

effort to elicit the sensitive and personal information re-

quired. Thus, we do not hold that a trial-type hearing,

such as that now provided in New York City, is constitu-

tionally requisite. See Morrissey v. Brewer, 408 U.S.

471 (1972). Indeed, we are reluctant to impose any pre-

ordained structure upon the endeavor of trained social

workers to evaluate the often ambiguous indices of a

child’s emotional attachments and psychological develop-

ment. Rather, we believe the sounder course is to allow

l7a

Appendiz ‘‘A’’, Opinion.

the various defendants—state and local officials—the first

opportunity to formulate procedures suitable to their own

professional needs and compatible with the principles set

forth in this opinion.

In summary, therefore, we conclude that New York

Social Services Law §$§ 383(2) and 400, and N.Y.C.R.R.

§ 450.14, as presently operated, unduly infringe the consti-

tutional rights of foster children. Defendants are en-

joined from removing any foster children in the certified

class from the foster homes in which they have been placed

unless and until they grant a pre-removal hearing in ac-

cord with the principles set forth above. Of course, our

decision today does not in any way limit the authority of

the State to act summarily in emergency situations.

Family Court Act § 1021.

The court thanks Mrs. Helen L. Buttenwieser for her

valuable assistance as assigned counsel.

Order to be taken on submission.

Dated: March 29, 1976.

J. Edward Lumbard

J. Epwarp LuMmBarp

United States Circuit Judge

Robert L. Carter

Ropert L. Carrer

United States District Judge

18a

Appendix ‘‘A’’, Opinion.

FOOTNOTES

* Pursuant to the provisions of 28 U.S.C. § 2281, this three

judge court was convened to consider plaintiffs’ non-frivolous

constitutional claims.

?In recognition of the independent position advanced by Mrs.

Buttenwieser, the term “plaintiff” will be used throughout this

opinion to refer only to OFFER and the foster parents although

the foster children were also named in the complaint.

*@In a separate order, filed concurrently with this opinion,

Judge Carter has granted the motion of both plaintiffs andl tate.

venors for class certification. The following parties are thus

represented in the instant litigation: All foster parents who have

had a foster child live with them continuously for over one year;

all foster children who have lived continuously with their foster

parents for over one year; and all natural parents who have

voluntarily placed children in foster care.

° As will be discussed more fully below, New York City has

revised its procedures during the course of this litigation.

* Authorized agency is defined in New York Social Services

Law § 371 (10). It ineludes any local public welfare children’s

bureau, such as the defendants New York City Bureau of Child

Welfare and Nassau County Children’s Bureau, and any volun-

tary child-care agency under the supervision of the New York

State Board of Social Welfare, such as the defendant Catholic

Guardian Society of New York.

*In October 1974, the New York State Department of Social

Services prepared Program Analysis Report No. 56, entitled

“Time Spent in Care by Children Served in the New York State

Foster Care Program 1973.” The report calculated that “[t]he

median length of stay for dependent and neglected children in

foster care at the end of 1973 was 4.38 years,” at p. 13. This

raw statistic was placed in context by Prof. David Fanshell of the

Columbia University School of Social work + ao testified on the

basis of his own longitudina] study that the probability of a foster

child being returned to his biological parents declined markedly

after the first year in foster care. Professor Fanshell’s study, con-

ducted over a five year period, revealed a decline in di

rate, as follows:

a 24%

. § ae 13%

UE SUED -scccssincinnsitsnlinian 8%

| Sa a 9%

PEE. DONT scccetnciatialasiaal 7%

19a

Appendia ‘‘A’’, Opinion.

* Foster parents boarding children in their home must be

licensed annually by an authorized agency pursuant to a legislative

scheme set out in New York Social Services Law § 375, et seq.

*See note 5, supra.

* “The Court has frequently emphasized the importance

of the family. The right to conceive and to raise one’s chil-

dren have been deemed ‘essential,’ Meyer v. Nebraska, 262

U.S. 390, 399 (1923), ‘basic civil rights of man,’ Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942), and ‘[rJights far more

precious . . . than property rights.’ May v. Anderson, 345

U.S. 528, 533 (1953). ‘It is cardinal with us that the custody,

care and nurture of the child reside first in parents, whose

primary function and freedom include preparation for obli-

gations the state can neither supply nor hinder.’ Prince v.

Massachusetts, 321 U.S. 158, iS6 (1944). The integrity of

the family unit has found protection in the Due Process

Clause of the Fourteenth Amendment, Meyer v. Nebraska,

supra, at 399, the Equal Protection Clause of the Fourteenth

Amendment, Skinner v. Oklahoma, supra, at 541, and the

Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479,

496 (1965) (Goldberg, J., concurring).” Stanley v. Illinois,

405 U.S. 645, 651 (1972).

*In Stanley, the Supreme Court invalidated a provision of

Illinois law which made the children of unwed fathers wards of

the State upon the death of the mother. The Court held that,

absent a ing, the state was prohibited from presuming that

the father would be an unfit parent merely because he had never

married.

ts $155 per month for each foster child boarded in their

eg in addititon to an allowance for clothing, medical and

dental expenses. This amount is typical of that paid throughout

the state.

11 Plaintiffs have introduced affidavits from similarly eminent

experts equally fervent in their support of the concept of the

“psychological family.”

4a Judge Pollack concludes his dissenting opinion with the ob-

servation that Social Services Law § 383(3) already “embodie[s]

through the right of intervention” the requirement that a pre-

removal hearing be provided if the foster child has lived with his

foster parents for more than two years. This statement is incor-

rect. An examination of § 383(3) plainly reveals that while it

grants to foster parents the right to intervene in any “proceeding”

20a

Appendix ‘‘A’’, Opinion.

concerning the custody of foster children who have resided with

them for twenty-four months or longer, it does not purport to

create any substantive entitlement to a “hearing” or “proceeding”

not elsewhere provided. Judge Pollack’s contrary interpretation

of the statutory language is moreover belied by the current prac-

tices of the defendants. Furthermore, the right to intervention

granted by § 383(3) extends to the foster parents only and not to

the children themselves.

We therefore emphasize once again that, with the exception of

the recently amended regulations in effect in New York City, it is

presently the law throughout New York State that a pre-removal

hearing is unavailable regardless of the duration of the foster re-

lationship being terminated.

* Our disposition of this case makes it unnecessary to decide

the claim of the foster parents that the challenged statutes and

regulations deprive them of the equal protection of the laws.

** Accordingly, we see no basis for intervenors’ doomsday

projection that biological parents who might otherwise entrust

their children to the foster care system will be discouraged from

doing so, to the detriment of the child, by the decision in this case.

13* Nor do we find anything to the contrary in the Supreme

Court’s recent holding that an evidentiary hearing is not required

prior to the termination of disability benefits. Mathews v. Eld-

ridge, 44 U.S.L.W. 4224 (February 24, 1976). Writing for the

majority, Justice Powell emphasized the limited and financial

nature of the deprivation there suffered by the plaintiff and the

necessarily heavy reliance by the agency on medical documentation

in reaching its decision. In contrast, the emotional trauma felt

by a young child moved from a familiar home is pervasive and

potentially devastating. Moreover, in determining whether the

best interests of the child would better be served by his removal

to another foster family, the social worker must weigh and evaluate

a ‘‘wide variety of information,’’ much of it subjective and some

of it biased. 44 U.S.L.W. at 4232. A hearing provides the pro-

cedure for gathering and evaluating such data, thereby mini-

mizing the risk of error.

**See note 10, supra.

* It is for this reason that we are unable to agree with inter-

venors’ assertion that a constitutionally adequate recourse is pro-

vided the foster parents through a petition for habeas corpus or a

petition for custody under Family Court Act § 651, even assuming,

arguendo, that the above remedies would be available to a foster

parent prior to the removal of the foster child.

2la

Appendix “B”, Dissenting Opinion.

UNITED STATES DISTRICT COURT

SovutTHErRN District or New York

74 Civ. 2010

ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND

REFORM; MADELINE SMITH, on her own behalf and as next

friend of DANIELLE and ERIC GANDY; and RALPH and

CHRISTIANE GOLDBERG, on their own behalf and as next friend

of RAFAEL SERRANO; and GEORGE and DOROTHY LHOTAN,

on their own behalf and as next friend of CHERYL, PATRICIA,

CYNTHIA and CATHLEEN WALLACE, on behalf of themselves and

all others similarly situated,

Plaintiffs,

v. ,

JAMES DUMPSON, individualiy and as Administrator of the NEW YORK

CITY HUMAN RESOURCES ADMINISTRATION; ELIZABETH

BEINE, individually and as Director of the NEW YORK CITY

BUREAU OF CHILD WELFARE, and as Acting Assistant Admin-

istrator of NEW YORK CITY SPECIAL SERVICES FOR CHIL-

DREN; ADOLIN DALL, individually and as Director of the

DIVISION OF INTER-AGENCY RELATIONSHIPS of | the

BUREAU OF CHILD WELFARE; and JAMES P. O’NEILL, indi-

vidually and as Executive Director of CATHOLIC GUARDIAN

SOCIETY OF NEW YORK; BERNARD SHAPIRO, individually and

as Executive Director of the New York State Board of Social Welfare;

ABE LAVINE, individually and as Commissioner of the New York

State Department of Social Services, and JOSEPH D’ELIA, individually

and as Commissioner of the Nassau County Department of Social Services,

Defendants,

NAOMI RODRIGUEZ; ROSA DIAZ; MARY ROBINS; DOROTHY

NELSON SHABAZZ; and LILLIAN COLLAZO, on behalf of them-

seves and all others similarly situated,

Intervenors- Defendants.

s+.

Before Lumsarp, Circuit Judge, and Pottack and

Carter, District Judges.

22a

Appendix ‘‘B’’, Dissenting Opinion.

APPEARANCES:

Marcia Rosinson Lowry, Esq. and Peter Brenstock,

Esq., New York Civil Liberties Union,

Attorneys for Plaintiffs Organization of Foster Fami-

lies for Equality and Reform; Madeline Smith; Ralph

and Christiane Goldberg; George and Dorothy Lho-

tan; on behalf of themselves and all others similarly

situated,

Office and P.O. Address:

84 Fifth Avenue, New York, N.Y. 10011

Heen L. Butrenwieser, Esq.,

Attorney for Plaintiffs Danielle and Eric Gandy;

Rafael Serrano; Cheryl, Patricia, Cynthia and Cath-

leen Wallace; on behalf of themselves and all others

similarly situated,

Office and P.O. Address:

575 Madison Avenue, New York, N.Y. 10022

Aprian Burke, Esq., Corporation Counsel,

Attorney for Defendants James Dumpson and Eliza-

beth Beine

Office and P.O. Address:

Room 1637, Municipal Building, New York, N.Y. 10007

By: Exuorr Horrman, Esq., Assistant Corporation

Counsel

Joun F. O’SHavcunessy, Esq., County Attorney of

Nassau County,

Attorney for Defendant James P. O’Neill

Office and P.O. Address:

1 West Street, Mineola, New York

By: James Gatiacuer, Esq.

23a

Appendix ‘‘B’’, Dissenting Opinion.

Louis J. Lerxowirz, Attorney General of the State of

New York and Samveu A. HirsHowiTz, First Assistant

Attorney General,

Attorneys for Defendants Bernard Shapiro and Abe

Lavine

Office and P.O. Address:

Two World Trade Center, New York, N.Y. 10047

By: Sranzey L. Kantor, Esq.

Martie L. THompson, Esq. and Tosy Gorick, Esq.

Attorneys for Intervenors-Defendants,

Office and P.O. Address:

Community Action for Legal Services,

335 Broadway, New York, N.Y. 10013

AMENDED

Potxack, District Judge (dissenting) : MP

This is a suit seeking declaratory judgment that New

York Social Services Law §§ 383(2) and 400 and Title 18,

New York Codes, Rules, and Regulations (N.Y.C.R.R.)

§ 450.14 are unconstitutional on their face and as applied

and seeking injunctive relief against their enforcement.

The complaint is grounded on allegations that the sections,

which prescribe procedures for the separation of foster

children from their foster parents, deprive plaintiffs of

due process and equa! protection in violation of the Four-

teenth Amendment. For the reasons shown hereafter the

complaint must be dismissed.

The present statutory scheme, applicable throughout

most of the state, provides that the local Public Welfare

Department or any authorized private agency acting on its

behalf may, at any time up to two years after a child has

been placed in foster care, in its discretion and on ten

days’ written notice, order the removal of any foster child

from the foster home in which he or she has been placed.

24a

Appendix ‘‘B’’, Dissenting Opinion.

SSL §$§ 383(2), (3), 400 (1976 Supp.). Following notice

of the impending removal, the foster parents may request

a conference with a social services official and are given

the reasons for removal and have an opportunity to ex-

press their views thereon. The child may not be removed

from the foster home until three days after the confer-

ence. Written notice of the decision must be sent to the

foster parents no later than five days after the conference

which must contain advice of their right to appeal to the

Department. N.Y.C.R.R. § 450.14(a-e). A decision to re-

move may be appealed to the Department, by ‘‘any person

aggrieved’’, and the Department must review the case,

give the appellant an opportunity for a fair hearing and

render a decision within thirty days. SSL §400(2) (1976

Supp.). A foster parent has been held to be an ‘‘ag-

grieved person’’ and where administrative remedies are

finally exhausted, Court review is available by way of an

Article 78 proceeding, CPLR 7800 et seq., before the New

York Supreme Court. In re W, 77 Misc.2d 374, 355 N.Y.S.

2d 245 (Family Ct. N.Y. Co. 1974). Additionally, after 24

months of foster parentage the foster parents are granted

the statutory right to ‘‘intervene’’ in any proceeding in-

volving the custody of the child. SSL 4§383(3) (1976

Supp.). Habeas corpus review is also presumably avail-

able at the instance of either the foster parent or the foster

child. N.Y. CPLR §§ 7001 et seq.’

The foster-parent-plaintiffs contend that these proce-

dures deprive them of ‘‘liberty and property’’ interests

without due process of law. The specific liberty interest

which they assert is the right to familial privacy.

Plaintiffs insist that after one year of foster care, no

child should be removed from a foster home without prior

notice and an adversary hearing because emotional at-

25a

Appendiz ‘‘B’’, Dissenting Opinion.

tachments have formed by that time which the state

_ Should not be at liberty arbitrarily to upset.

Plaintiffs-foster-parents initially sought to represent, as

‘‘next friend,’’ the interests of their foster children as

well. However, to forestall any possible conflict of interest,

Judge Carter appointed Helen L. Buttenwieser as inde-

pendent counsel for the foster children. In that capacity

she has consistently argued that the foster parents have

no constitutionally cognizable interest independent of

those of the foster children and that an adversary hear-

ing is not the proper forum to determine the “best inter-

est of the child.”

The plaintiffs-foster parents, in attempting in this action

to obtain rights to certain procedures before a child may

be removed from their home, no matter what the circum-

stances of the foster parents’ home, are in effect seeking

legislative relief.

Since the commencement of this law suit, New York City

has revised its removal procedures when the child is to be

placed somewhere other than with its own parents. These

new procedures grant to foster parents most of the pro-

cedural protections requested by plaintiffs in this law suit:

a foster parent receives detailed notice of the intent to

remove a child, the reasons for the intended removal, and

the right to a fair hearing by the City’s Department of

Social Services. The foster parents have access to Agency

reports to be used at the hearing. Foster parents can

present and cross-examine witnesses. The Agency deter-

mination must be based vitly on the record; its written

decision must be served within five days of the hearing;

and the child cannot be moved in the interim. A recording

of the hearing is made and is available at cost.

All members of the Coart agree that there is no merit in

plaintiffs’ argument that the realities of the foster care

system, as presently administered in New York State,

26a

Appendia ‘‘B’’, Dissenting Opinion.

justify the finding of an expectation akin to a “property

erste that their role as foster parents will not be

abruptly and summarily terminated. See Board of Regents

v. Roth, 408 U.S. 564 (1972). Each foster parent signed,

upon assuming responsibility for his or her respective

foster child, a contract which reserves to the Agency we

right to recall the child a — realising that su

will only be made for good reason.

ag arco lainitifts’ assertion that the foster home is

entitled to the same constitutional deference as that long

granted to the more traditional biological family because

recent studies conclude that the “family” can best be con- .

as a psychological entity, presents a novel question

pet ene arabe mo joe debate. The plaintiffs seemingly

ask this Court to extend to them the due process pro-

tection afforded to the biological father of an illegitimate

child in Stanley v. Illinois, 405 U.S. 645 (1972). Such an

extension would adopt a principle that has long been

anathema to the State’s foster care policies. a —

rent/child relationship is an amorphus one,

aie nae ean be precisely defined or explained. The

New York Courts have virtually unanimously refused the

notion of “common law adoption” and have stated that, in

absence of a statutory scheme, adoption—that is the means

whereby the status or relationship of parent or child is

created between persons not so related by nature—is not

permitted. Matter of Malpica-Orsini, 36 N.Y. 2d 568, 570

(1975) ; Landon v. Motorola, Inc., 38 A.D. 2d 18 (3d Dept.

8 .

” save decided that the foster parents have no entitle-

ment to their foster children, the Court declines to decide

the debate surrounding the plaintiffs’ requested extension

of Stanley v. Illinois, supra; an extension which would in-

vest plaintiffs with a “liberty” interest either in the chil-

dren or the relationship itself. Instead of entering that

27a

Appendix ‘‘B’’, Dissenting Opinion.

debate, the Court departs from the better part of plain-

tiffs’ claims, focused as they are on allegations of uncon-

stitutionality from the viewpoint of the foster parents.

The Court then rests its decision on a characterization of

the foster children’s interest that has been denied by the

children’s representative, Mrs. Buttenwieser. The Court’s

opinion anticipates a question of constitutional law in ad-

vance of the necessity of deciding it. It holds over the

objection of the representative of the children in this suit

that the foster children have a “liberty” interest in their

relationship with the foster parents. The position of the

children taken by the Court is espoused only by the foster

parents who have no standing to assert the children’s in-

terest.‘ No one with standing to claim that the children

require the due process protection sought herein is mak-

ing that claim and, therefore, on well-settled principle it is

not necessary or appropriate to reach thet issue.

The Court will not ‘anticipate a question of constitu-

tional law in advance of the necessity of deciding it.’

Inverpool, N.Y. d P.S.S. Co. v. Emigration Commis-

sioners, 113 U.S. 33, 39; Abrams v. Van Schaick, 293

U.S. 188; Wilshire Oil Co. v. United States, 295 U.S.

100. |

‘It is not the habit of the Court to decide questions

of a constitutional nature unless absolutely necessary

to the decision of the case.’ Burton v. United States,

196 U.S. 283, 295—Ashwander v. Valley Authority,

295 U.S. 288, 346-7 (1936) (Brandeis, J. concurring ).°

On the basis of its resolution of this anticipated question

the Court decides that the preremoval procedures presently

employed by the State are constitutionally defective in

that a child is entitled to a hearing “whenever and as

soon as the child has been placed in a foster home for

long term care or whenever, for any reason, he has re-

28a

Appendix ‘‘B’’, Dissenting Opinion.

mained in a foster home for a period of one year or more.”

Pursuing this result which has every earmark of legislative

action, the Court rules that ‘‘defendants are enjoined from

removing any foster children from the foster homes in

which they have been placed for long term care or in which

they have lived for more than one year unless and until they

grant a pre-removal hearing.”*

Realizing that it is moving into unchartered seas, the

Court states ‘‘we are reluctant to impose any pre-ordained

structure upon the endeavor of trained social workers to.

evaluate the often ambiguous indices of a child’s emotional

attachments and psychological development. Rather, we be-

lieve the sounder course is to allow the various defendants—

state and lccal officials—the first opportunity to formulate

procedures suitable to their own professional needs and

compatible with the principles set forth in this opinion.’’

This result will undoubtedly come as a surprise, if not a

shock, to the parties. No one has contended for the view

reached in the Court’s opinion, except possibly to touch on

the subject matter tangentially. The parties should cer-

tainly have been given a hearing (a briefing opportunity)

on the point made by the opinion. They should have been

alerted to the possibility that the Court might undertake

to consider the “unconstitutionality” of the present pro-

cedures from the viewpoint of the foster children whose

representative was not asserting any such contention.

If the Court must reach the interest of the children, it

must face a situation in which at every step in the foster

care system (whether before or after the 24 month period)

the child is represented only by the State or by the foster

parents. He receives no notice and has no independent

* The Court’s draft opinion was as quoted above. It has since

limited its holding to’ apply to only those foster children who

have resided with one set of foster parents for at least a year. The

dissent is nonetheless the same.

29a

Appendiz ‘‘B’’, Dissenting Opinion.

representative at any stage; in short he has no independent

role. Therefore, if the question were properly presented,

the Court would have to decide whether or not the State,

in its parens patriae capacity, acts as a sufficient represen-

tative for the child and whether or not the Due Process

Clause mandates an adversarial hearing for foster

children.

Since an independent representative for the child will

inevitably be required, the Court has imposed on the

delicate system of foster care an inapposite model for the

application of the Due Process Clause; a model which

requires the balancing of the individual’s apparent need

for procedural safeguards and the State’s apparent need

for summary action.‘

The very structure of the State’s foster care system

belies the applicability of this model. In a system that at

least purports (and the evidence herein shows that it

actually does) represent ‘‘the best interests of the child’’

there can be no such facile distinction between the interest

of the child, on the one hand, and that of the State, on the

other. Unlike the traditional context in which the Due

Process Clause has been litigated, there is no necessary

opposition between the child and the State here. The

State’s professional social workers should not so easily

be rejected as adequate representatives for foster children

(if in this context the Due Process Clause requires strict

‘*representation’’ at all). Their representation of those

children has simply not, on the hearing of this case, been

shown to be so inadequate as to require the introduction

of a third party to represent the child.

The interests involved in this system of child care are

too sensitive, too inchoate, to fit this old due process model;

and there seems little doubt that this case presents a strik-

ing example of the need for flexibility in the application of

the Due Process Clause.’ Neither the Court’s adherence

30a

Appendix ‘‘B’’, Dissenting Opinion.

to the old Due Process approach by requiring an independ-

ent representative, nor its refusal to provide further

guidelines for the type of hearing it envisions taps the

potential for such flexibility.

If the Court has, in fact, improperly required a third

party to represent the child, then the remainder of its

analysis can only be described as legislation. In holding

that the child’s interest requires that the foster parents

have a formal voice in any decision to remove the child

after a year of foster parentage or whenever the child is

placed with them for ‘‘long term care,’’ the Court first

undertakes to express a social policy preference for a one

year rather than the present statutory two year period,

and then hedges by promulgating a vague standard (as

yet undefined in this system) apparently meant to test

foster parent-child relationships from their incipiency.

There is no support for such a use of the Fourteenth

Amendment.

Rather than relying on the disinterested social judgment

of professional social workers acting under the aegis of ©

well-conceived tried and tested statutes, the Court’s deci-

sion embroils the child in legalistic, psychological theorism ;

leaving the child a pawn in a game from which the child

should be spared. No evidence has shown that the present

procedures are conducive to or have resulted in hasty or

ill-advised separations from the viewpoint of the foster

child.

The right of cross-examination and discovery proce-

dures, which would presumably now be afforded to foster

parents after one year, have not been shown to be in the

best interests of the child.

I do not imply in any wise that a child should not have

the right to be heard—to participate. That is not what is

at stake. The only question before the Court is whether

layers of procedural obstruction should be afforded to

3la

Appendix ‘‘B’’, Dissenting Opinion.

the foster parents to impede judgments reasonably

reached by concerned independent disinterested agencies

and professionals by less starchy methods. The pre-

removal conference and the procedures leading thereto

are not in any instance shown to have been defective from

the viewpoint of the foster child. It is unrealistic to expect

that a pre-teenage child, for example, is to invoke the

‘*hearing’’ contemplated by the majority decision. And

if an appointed adult representative is needed to articulate .

the interest of the child—the existing procedures accord

the needed due process.

The State legislature which spawned the statutory

scheme that makes the foster parent-child relationship

possible has made the rational decision that until it is 24

months old this relationship can never be sufficiently strong

to require pre-termination hearing protection. While not

abdicating its constitutional responsibilities or improperly

deferring to a state legislature, the Court should not over-

turn the legislature’s decision absent adequate proof that

it is irrational or unfair. In short, it can recognize the

State legislature’s superior fact-finding ability and it can

agree with that legislature’s decision without avoiding its

obligation to determine what does and does not satisfy the

Due Process Clause.

The Supreme Court has warned against a return to the

days of substantive due process. |

Under the system of government created by our

Constitution, it is up to legislatures, not courts, to

decide on the wisdom and utility of legislation. There

was a time when the Due Process Clause was used by

this Court to strike down laws which were thought

unreasonable, that is, unwise or incompatible with

some particular economic or social philosophy. ... We

have returned to the original constitutional proposi-

tion that courts do not substitute their social and

32a

Appendix ‘‘B’’, Dissenting Opinion.

economic beliefs for the judgment of legislative bodies,

who are elected to pass laws ... . we refuse to sit as

a “‘super legislature to weigh the wisdom of legis-

lation,’’ [citation omitted] and we emphatically refuse

to go back to the time when courts used the Due

Process Clause ‘‘to strike down state laws, regulatory

of business and industrial conditions, because they

may be unwise, improvident, or out of harmony

with a particular school of thought.’ [citation

omitted] .... The... statute may be wise or unwise.

But relief, if any be needed, lies not with us but with

the body constituted to pass laws for the State... .

Ferguson v. Skrupa, 372 U.S. 726, 729-732 (1963).

This warning applies equally well to the social as to the

economic sphere. While (in the first two years of foster

parentage) it may conceivably be wiser to hold a ‘pre-

termination hearing to hear the parties out, it is not,

thereby, constitutionally required. The evidence has not

shown that, during those first two years, the foster parents

and the foster child are not’afforded adequate due process.

The choice of providing a pre-termination hearing after

one year of foster parentage rather than the two year

period now embodied in SSL § 383(3) through the right

of intervention, is a choice that seems particularly legis-

lative in character.

I would dismiss the complaint.

8/ Mitton Potiack

33a

Appendiz ‘‘B’’, Dissenting Opinion.

FOOTNOTES

s ial Services Law § 392 (1976 Supp.) the New York

Family —. required to hold a hearing to review the foster

care status of any foster child after 18 months of continuous care

in the same foster home and, then, at least every 24 months. The

foster parents are made parties ‘‘entitled to participate in this

proceeding.’’ § 392(4) (1976 Supp.).

: outlined above and under attack here also fairly

put bg om yntenes on notice of the State’s right to summarily

remove the child from the foster home within 24 months of foster

parentage. Of course, the observations in the text above are prin-

cipally relevant with respect to an assertion of an eos

to the children or’ the foster parent-child relationship. Suc , a

property-like interest is to be distinguished from an ey a

‘‘liberty’’ interest similar to that asserted in Stanley v. Illinas,

405 US. 645 (1972).

* The Appellate Division of the Second Department has recently

Bn yy a Trial Term decision ordering two of the

' plaintiffs in this action to return their foster children to their

ther. State of New York ex rel. Wallace v. Lhotan et

a YD. March 1, 6, p. 2, col. 1 (2d Dept., Feb. 23, 1976),

affirming, 48 A. D.2d 665 (Sup. Ct. Nassau Co. 1975). In that

decision the Court discussed part of the rationale behind the re-

jection of the concept of common-law adoption in the case of foster

parents.

. . .. the foster parents must make a serious attempt to en-

courage, not discourage, the improvement of relations be-

tween the children under their charge and a mother who is

trying to reestablish the bonds of family love and concern.

A portion of the love that foster parents have for the children

must be directed towards easing their return to their natural

t. Whatever circumstances will rend the family fabric,

it should not be the result of actions of the foster parents,

who have taken on their delicate responsibilities on the solemn

SEC ER ate ey Gongen wth Ge enty to oveld

foster parents are cha wi re du

Hk b. a very qupehalagied relationship which they present

here as a justification for a pre-removal hearing.

° upreme Court has frequently expressed the general rule

that i a does not have standing to assert the constitutional

rights of another. United States v. Raines, 362 U.S. 17, 21-22

(1960) ; Tileston v. Ullman, 318 U.S. 44, 46 (1943). See generally,

Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972); Barrows v.

34a °

Appendix ‘‘B’’, Dissenting Opinion.

Jackson, 346 U.S. 249 (1953). In light of the representation of

the children by Mrs. Buttenwieser and the Court’s holding that

an independent representative is required for the foster child at

. the due process hearing it orders, there can be no grounds for

waiving this general rule in this case.

By its appointment of Mrs. Buttenwieser the Court has recog-

nized the severability of the claims of foster parents and the

foster children. See Rule 17(c), Fed. R. Civ. P.; Wright and

Miller, Federal Practice and Procedure, § 1570 at 774 (1969).

Therefore, the foster parents cannot now be invested with standing

as an exception to the Raines rule on the grounds that their in- ©

terests are not severable from those of the children. See Sedler,

Standing to Assert Constitutional Jus Tertti in the Supreme Court,

71 Yale L.J. 599, 606 et seg. (1962); Note, Standing to Assert

Constitutional Jus Tertii, 88 Harv. L. Rev. 423 (1974).

The Court’s recognition of some interest in the child other than

that asserted by their independent representative herein betrays

a significant confusion over the question of when a child does and

does not require independent representation under the Due Process

Clause. Apparenly a child requires an independent representative

in the hearing required by the Court despite the views of the

children’s independent representative in the hearing of this action.

In short, allowing foster parents standing here to assert the in-

terest of the child seriously undermines the Court’s later finding

that the child requires representation independent of the foster

parents at a due process hearing.

* This principle of constitutional jurisprudence is precisely the

authority invoked by the Court in its avoidance of the debate sur-

rounding plaintiffs’ analogy to Stanley v. Illinois, supra. See

——— Rescue Army ¥. Municipal Court, 331 U.S. 549, 568-75

(1947).

*See Bell v. Burson, 402 U.S. 535 (1971); Richardson v.

Perales, 402 U.S. 389 (1971); Note, Specifying the Procedures

Required By Due Proces*: Toward Limits on the Use of Interest

Balancing, 88 Harv. L. Rev. 1510 (1975).

7**.... the very nature of due process negates any concept of

inflexible procedures universally applicable to every imaginable

situation. . .. what procedures due process may require under any

given set of circumstances must begin with a determination of

the precise nature of the government function involved as well as

of the private interest that has been affected by governmental

action. . . . ‘{[D]ue process, unlike some legal rules, is not a tech-

nical conception with a fixed content unrelated to time, place and

. 35a

Appendiz ‘‘B’’, Dissenting Opinion.

i tances.’ It is ‘compounded of history, reason, the past

a of decisions. . . .’" Joint Anti-Fascist Comm. Vv. McGrath,

2/1 U.S. 123, 162-163 (concurring opinion).”’ Cafeteria & Restau-

rant Workers v. McElroy, 367 U.S. 886, 894-895 ( 1961) ; Frost v.

Weinberger, 515 F.2d 57, 66 (2d Cir. 1975). See Friendly, H.J.,

‘“Some Kind of Hearing’’, 123 U.Pa. L.Rev. 1267 (1975) ; Frankel,

M. The Search for Truth: An Umpireal View, 1031, 1036 (1975).

36a

Appendix “C”, Order and Jadauuat.

UNITED STATES DISTRICT COURT

SouTHeErn District or New York

74 Civ. 2010

ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND

REFORM; MADELINE SMITH, on her own behalf and as next

friend of DANIELLE and ERIC GANDY; and RALPH and

CHRISTIANE GOLDBERG, on their own behalf and as next friend

of RAFAEL SERRANO; and GEORGE and DOROTHY LHOTAN,

on their own behalf and as next friend of CHERYL, PATRICIA,

CYNTHIA and CATHLEEN WALLACE, on behalf of themselves and

all others similarly situated,

Plaintiffs,

JAMES DUMPSON, individually and as Administrator of the NEW YORK

CITY HUMAN RESOURCES ADMINISTRATION; ELIZABETH

BEINE, individually and as Director of the NEW YORK CITY

BUREAU OF CHILD WELFARE, and as Acting Assistant Admin-

istrator of NEW YORK CITY SPECIAL SERVICES FOR CHIL-

DREN; ADOLIN DALL, ‘individually and as Director of the

DIVISION OF INTER-AGENCY RELATIONSHIPS of | the

BUREAU OF CHILD WELFARE; and JAMES P. O'NEILL, indi-

vidually and as Executive Director of CATHOLIC GUARDIAN

SOCIETY OF NEW YORK; BERNARD SHAPIRO, individually and

as Executive Director of the New York State Board of Social Welfare;

ABE LAVINE, individually and as Commissioner of the New York

State Department of Social Services, and JOSEPH D’ELIA, individually

and as Commissioner of the Nassau County Department of Social Services,

Defendants,

NAOMI RODRIGUEZ; ROSA DIAZ; MARY ROBINS; DOROTHY

NELSON SHABAZZ¢ and LILLIAN COLLAZO, on behalf of them-

selves and all others similarly situated,

Intervenors-Defendants.

This cause having come on to be heard on plaintiffs’

application for injunctive and declaratory relief, and this

court having held a hearing on March 3, 1975, and briefs

37a

Appendiz ‘‘C’’, Order and Judgment.

and depositions having been submitted, and a decision

having been filed on March 22, 1976, it is hereby

OrpeRED and adjudged that:

(1) New York Social Services _ $§ 383(2) and 400,

and N.Y.C.R.R. § 450.14 as presently applied are unconsti-

tutional, in violation of the constitutional rights of foster

children in the certified class; and

(2) Defendants are permanently enjoined from remov-

ing or authorizing the removal of any foster children in

the certified class from foster homes in which they have

lived continuously for more than one year, without notice

and hearing at which the foster parents, the foster child

and the biological parents may present any relevant

information to the administrative decisionmaker charged

with determining the advisability of such removal; and

(3) At hearings such as referred to in the preceding

paragraph, defendants shall appoint a disinterested adult

to represent the child whenever the defendants, in their

informed discretion, determine that the child’s age, sophis-

tication and ability effectively to communicate his or her

own true feelings warrant such an appointment; and

(4) Said hearings need not be held when the foster

child is to be removed pursuant to the order of any court

of competent jurisdiction, or at the request of the foster

parent; and

(5) Said hearings need not be held in emergency situa-

tions when the health or welfare of the foster child is

imminently threatened ; and

(6) Procedures appropriate to the circumstances, and

consistent with the foregoing, shall be promulgated and

published by the defendants; and

38a

Appendia ‘‘C’’, Order and Judgment.

(7) The effective date of this order and judgment shall

be stayed for 30 days to permit application to a Justice of

the Supreme Court of the United States for a further stay

pending appeal to the Supreme Court of the United

States; and

(8) All motions for rehearing are denied except that

the clerk of the district court is directed to strike from the

eed page of the opinion the words: ‘‘Family Court Act

1021.’’

Dated: April 14, 1976.

J. Epwarp Lumparp

J. Epwarp Lumparp °

United States Circuit Judge

Mrizton Poitiack

United States District Judge

Rosert L, Carrer

Rosert L. Carrer

United States District Judge

I dissent from the foregoing except paragraphs #7

and #5.

Mitton Poiiack

United States District Judge

Judgment Entered—4/14/76

Raymonp F.. BureHarpt

Clerk

' 39a.

Appendix “D”, Notices of Appeal to the Supreme

Court of the United States.

UNITED STATES DISTRICT COURT

SouTHERN District or New YorkK

74 Civ. 2010 (RLC)

‘(3 Judge Court)

ORGANIZATION OF Foster Famiuies ror EQuaLity

AND Rerorm, et al.,

| Plaintiffs,

against

James E. Dumpson, individually and as Administrator of

the New York City Human Resources Administration,

et al.,

Defendants.

Sirs:

Notice is hereby given that Bernard Shapiro and Abe

Lavine, defendants in the above-captioned matter, hereby

appeal to the Supreme Court of the United States from the

final order and judgment of the three-judge court entered

in this action on April 14, 1976 declaring $4 383(2) and 400

of the New York Social Services Law and N.Y.C.R.R.

§ 450.14 unconstitutional as presently applied, and granting

permanent injunctive relief, and defendants hereby appeal

from each and every part of said order except so much as

stays the effective date for 30 days.

40a

Appendix ‘‘D’’, Notice of Appeal to the Supreme

Court of the United States.

This appeal is taken pursuant to 28 U.S.C. § 1253.

Dated: New York, New York

To:

June 10, 1976

Yours, ete.,

Louis J. Lerxow!rz

Attorney General of the

State of New York

Attorney for Defendants

Shapiro and Lavine

Mark C. Rurzick

Mark C, Rurzickx

Assistant Attorney General

Office & P.O. Address

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-7403

Hexen L. Butrenwieser, Esq.

Attorney for Appellants-Plaintiffs

Office & P.O. Address

575 Madison Avenue

New York, New York

W. Bernarp Ricuianp, Ese.

Corporation Counsel

Attorney for Defendants

James Dumpson and Elizabeth Beine

Office & P.O. Address

Room 1636 Municipal Building

New York, New York 10007

By: Elliott Hoffman, Esq.

Assistant Corporation Counsel

4la

Appendix ‘‘D’’, Notice of Appeal to the Supreme

Court of the United States.

Marttiz L. THompson, Esq.

and Tosy Goxick, Esq.

Attorneys for Intervenors-Defendants

Office & P.O. Address

Community Action for Legal Services

335 Broadway

New York, New York 10013

By: Louise Gruner Gans, Esq.

Marctra Roprnson Lowry, Esa.

N.Y. Civil Liberties Union

Organization of Foster Families

for Equality & Reform;

Madeline Smith, Ralph and Christiane

Goldberg; George & Dorothy Lhotan;

on behalf of themselves and all others

similarly situated

Office & P.O. Address

84 Fifth Avenue

New York, New York 10011

Joun F. O’SHavucunessy, Esa.

County Attorney for Nassau County

Attorney for Defendant

James P. O’Neill

Office & P.O. Address

1 West Street

Mineola, New York

By: James Gallagher, Esq.

4laa

Notice of Appeal to the Supreme Court

of the United States.

UNITED STATES DISTRICT COURT

SouTHERN District or New York

74 Civ. 2010 (RLC)

(3 Judge Court)

ORGANIZATION OF F'osTER FAMILIES FOR EQuaLity

AND Rerors, et al.,

Plaintiffs,

against

James E. Dumpson, individually and as Administrator of

the New York City Human Resources Administration,

et al.,

Defendants.

Sirs:

NOTICE IS HEREBY GIVEN that Danielle and Eric Gandy,

Rafael Serrano and Cheryl, Patricia, Cynthia and Cath-

leen Wallace, the infant Plaintiffs herein hereby appeal

to the Supreme Court of the United States from the

final order and judgment of the three-judge court entered

in this action on April 14, 1976 declaring §§ 383(2) and 400

of the New York Social Services Law and N.Y.C.R.R.

§ 450.14 unconstitutional as presently applied, and granting

permanent injunctive relief, and plaintiffs hereby appeal

from each and every part of said Order except so much as

stays the effective date for 30 days.

4lb

Notice of Appeal to the Supreme Court

of the United States.

This appeal is taken pursuant to 28 U.S.C. § 1253.

Dated: New York, New York

June 11, 1976

Yours, ete.,

Heten L. BurtENWIESER

Heven L. Butrrenwieser, Esq.

Attorney for Appellants-Plaintiffs

Office and P.O. Address

575 Madison Avenue

New York, New York 10022

Tel. No. (212) 826-1600

To: Lovis J. Lerxowirz

Attorney General of the State of New

York

Attorney for Defendants Shapiro and

Lavine

Office and P.O. Address

Two World Trade Center

New York, New York 10047

By: Mark C. Rutzick

Assistant Attorney General

W. Bernarp Ricuianp, Esq.

Corporation Counsel

Attorney for Defendants

James Dumpson and Elizabeth Beine

Office and P.O. Address

Room 1636, Municipal Building

New York, New York 10007

By: Elliott Hoffman, Esq.

Assistant Corporation Counsel

4le

Notice of Appeal to the Supreme Court

of the United States.

Marttiz L. THompson, Esq.

and Tosy Goxick, Esq.

Attorneys for Intervenors-Defendants

Office and P.O. Address

Community Action for Legal Services

335 Broadway

New York, New York 10013

By: Louise Gruner Gans, Esq.

Marcia Rosrnson Lowry, Esq.

N.Y. Civil Liberties Union

Organization of Foster Families

for Equality & Reform; Madeline

Smith, Ralph and Christiane Gold-

berg; George & Dorothy Lhotan;

on behalf of themselves and all

others similarly situated

Office and P.O. Address

84 Fifth Avenue

New York, New York 10011

Joun F. O’SHavucuyessy, Esq.

County Attorney for Nassau County

Attorney for Defendant

James P. O’Neill

Office and P.O. Address

1 West Street

Mineola, New York

By: James Gallagher, Esq.

41d

Notice of Appeal.

UNITED STATES DISTRICT COURT

SoutrHern District or New York

74 Civ. 2010

’™

ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND RE-

FORM: MADELINE SMITH, on her own behalf and as next friend of

DANIELLE and ERIC GANDY; and RALPH and CHRISTIANE

GOLDBERG, on their own behalf and as next friend of RAFAEL SER-

RANO; and GEORGE and DOROTHY LHOTAN, on their own behalf

and as next friend of CHERYL, PATRICIA, CYNTHIA and CATH-

LEEN WALLACE, on behalf of themselves and all others similarly

situated,

Plaintiff's,

against

JAMES DUMPSON, individually and as Administrator of the NEW YORK

CITY HUMAN RESOURCES ADMINISTRATION; ELIZABETH

BEINE, individually and as Director of the NEW YORK CITY BU-

REAU OF CHILD WELFARE, and as Acting Assistant Administrator

of NEW YORK CITY SPECIAL SERVICES FOR CHILDREN ;

ADOLIN DALL, individually and as Director of the DIVISION CF

INTERAGENCY RELATIONSHIPS of the BUREAU OF CHILD

WELFARE; and JAMES P. O'NEILL, individually and as Executive

Director of CATHOLIC GUARDIAN SOCIETY OF NEW YORK;

BERNARD SHAPIRO, individually and as Executive Director of the

New York State Board of Social Welfare; ABE LAVINE, individually and

as Commissioner of the New York State gee of Social Services,

and JOSEPH D’ELIA, individually and as issioner of the Nassau

County Department of Social Services,

Defendants,

NAOMI RODRIGUEZ; ROSA DIAZ; MARY ROBINS; DOROTHY

NELSON SHABAZZ; and LILLIAN COLLAZO, on behalf of them-

selves and all others similarly situated,

Intervenor-Defendants.

’*%

Notice or APPEAL TO THE SuPREME CouRT

OF THE UNITED STATES

Notice is hereby given that Naomi Rodriguez, Mary

Robins, Dorothy Nelson Shabazz, and Lillian Collazo,

Intervenor-Defendants above named, on behalf of them-

selves and all others similarly situated, appeal to the

Supreme Court of the United States from the judgment

4le

Notice of Appeal.

and order of the three-judge district Court (Pollack, D.J.,

dissenting) entered in this class action on April 14, 1976,

wherein the district Court declared unconstitutional and

enjoined the enforcement of New York Social Services

Law Sections 383(2) and 400 and New York Codes Rules

and Regulations (N.Y.C.R.R.) 450.14, to the extent said

statutes and regulation were applied by Defendants to

move children from foster homes in which they had been

placed for ‘‘a year or more,” without affording to the

children, in every case, notice and a prior hearing with

respect to the propriety of the proposed move.

This appeal is taken pursuant to 28 U.S.C. Section 1253.

Dated: New York, New York

June 10, 1976

Marttie L. THompson

Marttie L. THomMPson

Attorney for Intervenor-

Defendants

Community Action for Legal

Services, Inc.

335 Broadway

New York, New York 10013

(212) 966-6600

Louise Gruner Gans

of Counsel

To:

Marcia Rosrnson Lowry, Esq.

Attorney for Plaintiff

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

41f

Notice of Appeal.

Heven Butrenwieser, Esq.

Attorney for Children

575 Madison Avenue

New York, New York 10022

Maria Marcus

Office of the Attorney General

2 World Trade Center

New York, New York 10047

Exuior Horrman, Esq.

Assistant Corporation Counsel

Municipal Building

New York, New York 10007

JAMES GALLAGHER

Office of the County Attorney

of Nassau County

Nassau County Executive Building

West Street

Mineola, New York 11501

41g

Notice of Appeal to the Supreme Court

of the United States.

UNITED STATES DISTRICT COURT

SouTHerN District or New York

74 Civ. 2010

(R.L.C.)

—

ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND RE-

FORM; MADELINE SMITH, on her own behalf and as next friend of

DANIELLE and ERIC GANDY; and RALPH and CHRISTIANE

GOLDBERG, on their own behalf and as next friend of RAFAEL SER-

RANO; and GEORGE and DOROTHY LHOTAN, on their own behalf

and as next friend of CHERYL, PATRICIA, CYNTHIA and CATH-

LEEN WALLACE, on behalf of themselves and all others similarly

situated,

, Plaintiff s,

against

JAMES DUMPSON, individually and as Administrator of the NEW YORK

CITY HUMAN RESOURCES ADMINISTRATION; ELIZABETH

BEINE, individually and as Director of the NEW YORK CITY BU-

REAU OF CHILD WELFARE, and as Acting Assistant Administrator

of NEW YORK CITY SPECIAL SERVICES FOR CHILDREN;

ADOLIN DALL, aye! and as Director of the DIVISION OF

INTERAGENCY RELATIONSHIPS of the BUREAU OF CHILD

WELFARE; and JAMES P. O'NEILL, individually and as Executive

Director of CATHOLIC GUARDIAN SOCIETY OF NEW YORK:

BERNARD SHAPIRO, individually and as Executive Director of the

New York State Board of Social Welfare; ABE LAVINE, individually and

as Commissioner of the New York State rtment of Social Services,

and JOSEPH D’ELIA, individually and as issioner of the Nassau

County Department of Social Services,

Defendants,

NAOMI RODRIGUEZ; ROSA DIAZ; MARY ROBINS; DOROTHY

NELSON SHABAZZ; and LILLIAN COLLAZO, on behalf of them-

selves and all others similarly situated,

Intervenor-Defendants.

Sirs:

Notice is hereby given that the defendants James

Dumpson, Elizabeth Beine, and Adolin Dall hereby appeal

to the Supreme Court of the United States from the order

and judgment entered herein in the Office of the Clerk

4th

of the United States District for the Southern District of

New York on April 14, 1976 wherein it is adjudged that

New York Social Services Law §§ 383 (2) and 400 and

N.Y.C.R.R. § 450.14 as presently applied are unconstitu-

tional.

This appeal is taken pursuant to 28 U.S.C. § 1253.

Yours, etc.,

W. Bernarp RicHLanp

Corporation Counsel of

the City of New York

Attorney for Defendants,

Dumpson, Beine and Dall

Office and P. O. Address:

Municipal Building

New York, N. Y. 10007

CarL SANDERS

June 9, 1976.

To:

Marcia Rosinson Lowry, Esq.

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

Attorney for Plaintiffs

Organization of Foster Families

for Equality and Reform

Madeline Smith

Ralph and Christiane Goldberg,

on behalf of themselves and all

others similarly situated

41i

Notice of Appeal to the Supreme Court

of the United States.

He.en L. Burrenwieser, Esq.

575 Madison Avenue

New York, New York 10022

Attorney for Danielle

and Eric Gandy

Rafael Serrano, on behalf of

themselves and all others

similarly situated

Marrtiz Louis THompson, Esq.

Community Action for Legal Services, Inc.

335 Broadway

New York, New York 10007

Attorney for Intervenor-Defendants

Naomi Rodriguez

Rosa Diaz

Mary Robins

Dorothy Nelson Shabazz

Joun F, O’SHavucunessy, Esq.

County Attorney for Nassau County

Nassau County Executive Building

West Street

Mineola, New York 11501

Attorney for Defendant

James P. O’Neili

Louis J. Lerxowrrz, Esq.

Attorney General

Two World Trade Center

New York, New York 10047

Attorney for Defendants

Shapiro and Lavine

42a

Appendix “E”, Opinion.

UNITED STATES DISTRICT COURT

SouTHERN District or New York

74 Civ. 2010

ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND

REFORM; MADELINE SMITH, on her own alf and as next

friend of DANIELLE and ERIC GANDY; and RALPH and

CHRISTIANE GOLDBERG, on their own behalf and as next friend

of RAFAEL SERRANO; and GEORGE and DOROTHY LHOTAN,

on their own behalf and as next friend of CHERYL, PATRICIA,

CYNTHIA and CATHLEEN WALLACE, on behalf of themselves and

all others similarly situated,

Plaintiffs,

against

JAMES DUMPSON, individually and as Administrator of the NEW YORK

CITY HUMAN RESOURCES ADMINISTRATION; ELIZABETH

BEINE, individually and as Director of the NEW YORK CITY

BUREAU OF CHILD WELFARE, and as Acting Assistant Admin-

istrator of NEW YORK CITY SPECIAL SERVICES FOR CHIL-

DREN; ADOLIN DALL, individually and as Director of the

DIVISION OF INTER-AGENCY RELATIONSHIPS of | the

BUREAU OF CHILD WELFARE; and JAMES P. O'NEILL, indi-

vidually and as Executive Director of CATHOLIC GUARDIAN

SOCIETY OF NEW YORK; BERNARD SHAPIRO, individually and

as Executive Director of the New York State Board of Social Welfare;

ABE LAVINE, individually and as Commissioner of the New York

State Department of Social Services, and JOSEPH D’ELIA, individually

and as Commissioner of the Nassau County Department of Social Services,

Defendants,

NAOMI RODRIGUEZ; ROSA DIAZ; MARY ROBINS; DOROTHY

NELSON SHABAZZ; and LILLIAN COLLAZO, on behalf of them-

selves and all others similarly situtated,

Intervenor-Defendants.

43a

Appendix ‘‘ E’’, Opinion,

APPEARANCES:

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

By Marcia Robinson Lowry, Esq.

Peter Bienstock, Esq.

Attorneys for Plaintiffs Organization of Foster

Families for Equality and Reform; Madeline Smith;

Ralph and Christiane Goldberg: George and Dorothy

Lhotan; on behalf of themselves and all others

similarly situated

Helen L. Buttenwieser, Esq.

575 Madison Avenue

New York, New York 10022

Attorney for Plaintiff Children Danielle and Eric

Gandy ; Rafael Serrano; Cheryl, Patricia, Cynthia and

Cathleen Wallace; on behalf of themsleves and all

others similarly situated

Community Action for Legal Services, Inc.

335 Broadway

New York, New York 10013

By Marttie Louis Thompson, Esq.

Toby Golick, Esq.

Louise Gruner Gans, Esq.

Attorneys for Intervenor-Defendants

Naomi Rodriguez; Rosa Diaz; Mary Robins;

Dorothy Nelson Shabazz; Lillian Collazo; on behalf

of themselves and all others similarly situated

Adrian Burke, Esq.

Corporation Counsel

1637 Municipal Building

New York, New York 10007

By Elliott Hoffman, Esq.

Assistant Corporation Counsel

Attorneys for Defendants James Dumpson and

Elizabeth Beine

44a

Appendix ‘‘E’’, Opinion.

John F. O’Shaughnessy, Esq.

County Attorney of Nassau County

Nassau County Executive Building

One West Street

Mineola, New York 11501

By James Gallagher, Esq.

Attorney for Defendant James P. O’Neill

Louis J. Lefkowitz, Esq.

Attorney General of the State of New York

Two World Trade Center

New York, New York 10047

By Samuel A. Hirshowitz, Esq.,

First Assistant Attorney General;

Stanley L. Kantor, Esq.

Attorneys for Defendants Bernard Shapiro and

Abe Lavine

Carter, District Judge

OPINION

Plaintiff foster parents have moved, pursuant to Rule 23,

F.R.Civ.P., to certify as a class all foster parents having a

foster child who has lived continuously with them for over

one year. Prior to the appointment of separate counsel,

plaintiff foster children had moved for certification as a

class all foster children who have lived continuously

with their foster parents for over one year. In addition,

intervenor-defendants have asked the court to certify as a

class all natural parents who have voluntarily placed chil-

dren in foster care. Since each class satisfies the require-

ments of Rule 23(a) and 23(b) (2), F.R.Civ.P., the motions

are granted.

45a

Appendix ‘‘E’’, Opinion.

A. Numerosity (Rule 23(a)(1))

As of September 30, 1973, there were 32,115 children in

foster care with a family in New York State. New York

State Department of Social Services, Social Statistics, A

Monthly Summary, Vol. XXXV, No. 10, (Oct. 1973). The

number of children who, at any one time, are with a foster

family with whom they have been living continuously for

more than one year is fixed, but not easily ascertainable.

Plaintiffs estimate that one-half of those children in foster

care are so situated. Even if the figure were closer to one-

tenth there would be a sufficient number of class members

to make joinder impracticable. Likewise, however one es-

timates the number of foster parents with whom these

children have been living, the total seems bound to satisfy

the numerosity requirement. Indeed, the standard under

Rule 23(a)(1) is the impracticability of joinder, see gener-

ally 7 Wright & Miller, Federal Practice and Procedure

§ 1762 (1972), and the difficulty of identifying class mem-

bers is a factor the court may consider, along with numer-

osity, in determining the feasibility of joining all parties.

Poe v. Menghini, 339 F. Supp. 986, 990 (D. Kan. 1972);

see Yaffe v. Powers, 454 F. 2d 1362, 1366 (1st Cir. 1972).

While normally greater exactness in the computation of

the size of a class should be demanded of a party, Demarco

v. Edens, 390 F. 2d 836, 845 (2d Cir. 1968), in this case

there can be no doubt that the two groups are sufficiently

large. It is also unlikely that either class is too large to be

maintainable, see e.g., Almenares v. Wyman, 334 F. Supp.

912, 518 (S.D.N.Y.), modified on other grounds, 453 F. 2d

1075 (2d Cir. 1971), cert. denied, 405 U.S. 944 (1972), es-

pecially since there is no claim for damages.

* Recent data shows that this figure has remained fairly con-

stant. As of July 1975, 31,224 children were so situated. New

York State Department of Social Services, Social Statistics, A

Monthly Summary, Vol. XX XVII, No. 8 (Aug. 1975).

46a

Appendix “‘E’’, Opinion.

Intervenors estimate that at least 7,800 parents have

signed voluntary release forms placing their children in

foster care. While their method of computation seems no

more exact than that of plaintiffs, it is not challenged by

any other party. And once again, the size of the foster

care system makes it unquestionable that it affects many

people in the ways challenged in this suit.

B. Common Question of Law

or Fact (Rule 23(a)(2))

The challenged statutes and regulations are of state-

wide application. The procedures have been altered in

New York City, but that action was taken under the au-

thority of the existing statute and regulations which con-

tinue to have force throughout the state and the abandoned

procedures could easily be reinstated.’

There can be no doubt that each member of each class

faces a question of law identical to that faced by every

other member of the class. If the statutory or revised

New York City procedures are constitutionally deficient,

as plaintiff foster parents assert, the defects strike all

equally. Class action status is frequently deemed appro-

priate in cases such as this challenging the propriety of

state or federal law. See, e.g., Frost v. Weinberger, 375

F. Supp. 1312, 1317 (E.D.N.Y. 1974), rev’d on other

2 Alternatively, since plaintiffs contend that the revised New

York City procedures are inadequate under Fourteenth Amend-

ment strictures as well, each proposed class could be viewed as

composed of two subclasses—those subject to the revised New

York City procedures, and those living in the remainder of the

state. See Rule 23(c) (4), F.R:Civ.P. However, since the interests

of these groups are not antagonistic, Wetzel v. Liberty Mutual

Insurance Co., 508 F. 2d 239, pe (3d part — denied, —

U.S. 1011 (1975), and since only one statutory scheme is chal-

lenged, Wolfson v. Solomon, 54 F.R.D. 584, 588 (S.D.N.Y. 1972),

there is no need to certify subclasses.

47a

Appendix ‘‘ E’’, Opinion,

grounds, 515 F. 2d 57 (2d Cir. 1975); United States ex rel.

Walker v. Mancusi, 338 F. Supp. 311, 315-16 (W.D.N.Y.

1971), aff’d on other grounds, 467 F. 2d 51 (2d Cir. 1972).

C. Representative Parties’ Claims or Defenses

Typical of the Claims or Defenses of the

Class (Rule 23 (a)(3))

As described in Judge Lumbard’s opinion on the merits

filed today, the foster parents who would represent a class

all fear, with varying degrees of immediacy, the removal

without prior hearings of foster children who have lived

with them continuously for more than one year. The named

children face the possibility of being moved without the

procedural protections to which they may be entitled. The

intervenors all have children currently in the foster care

system. They all voice a concern that any changes in the

present system will adversely affect them in ways that

would be the same for all other parents who have volun-

tarily placed children in foster care. They are all, there-

fore, typical of the classes they seek to represent. Kohn

v. Royall, Koegel & Wells, 59 F.R.D. 515, 521 (S.D.N-Y.

1973), appeal dismissed, 496 F. 2d 1094 (2d Cir. 1974).

D. Fair and Adequate Protection of the Class’

Interests (Rule 23(a) (4))

Counsel for each of the representative parties have as-

siduously advocated the rights of those before the court

and of the class members not present. I would particu-

larly like to thank court-appointed counsel, Helen Butten-

wieser, for undertaking the burden assigned to her and for

a well conceived and helpful presentation of her under-

standing of the scope and reach of the rights of foster

children.

48a

Appendiz ‘‘E’’, Opinion.

E. Action or Inaction on Grounds Generally

Applicable to “‘lass—Appropriateness of

Injunctive or Weclaratory Relief (Rule 23

(b)(2))

Plaintiff foster parents have asked for declaratory and

injunctive relief that would establish for them certain pro-

cedural safeguards before a foster child can be removed

from their care. Both counsel for the foster children, and

counsel for intervenors have opposed this relief. No dam-

ages are sought. This situation is ideally suited for class

action treatment under subdivision (b)(2) of Rule 23,

F.R.Civ.P., since the decision of the court will have a

similar impact on broad groups of people. In fact, this

is the kind of situation envisioned by the drafters of Rule

23. See Advisory Committee Notes to Rule 23, F.R.Cw.P.

and cases cited therein; Escalera v. New York City Housing

Authority, 425 F. 2d 853, 867 (2d Cir.), cert. denied, 400

U.S. 853 (1970); Agron v. Montanye, 392 F. Supp. 454,

455 (W.D.N.Y. 1975); Lynch v. Baxley, 386 F. Supp. 378,

386-87 (M.D. Ala. 1974). Since class action treatment

is so clearly appropriate under subdivision (b)(2), I do

not need to consider whether any of these classes might

also be proper under (b)(1).

F. Notice

There has been no opportunity for notice to the class,

but that is immaterial since notice is no longer required

in 23(b)(2) class actions in this cireuit, Frost v. Wewn-

berger, supra, 515 F. 2d at 64-65; and in a case such as

this, where the court is in a position to determine that the

various arguments of the classes have been effectively pre-

sented, notice is not needed. Wetzel v. Liberty Mutual In-

surance Co., supra, 508 F. 2d at 254-57; Baxter v. Savannah

Sugar Refining Corp., 350 F. Supp. 139, 141 (S.D. Ga.

49a

Appendix ‘‘E’’, Opinion,

1972), aff'd in part, rev’d in part on other grounds and

remanded, 495 F. 2d 437 (5th Cir.), cert. denied, 419 U.S.

1033 (1974) ; Citizens Environmental Council v. Volpe, 364

F. Supp. 286, 288 (D. Kan.), aff'd, 484 F. 2d 870 (10th

Cir. 1973). All three classes, therefore, are appropriate

for class certification.

Intervenor-defendants have moved pursuant to Rule 15,

F.R.Civ.P., to amend their complaint, and also ask under

Rule 21, F.R.Civ.P., to be allowed to join an additional

party.

The motion to amend is granted and the proposed

amended intervenor-complaint is accepted, including the

first thirteen affirmative defenses, but not including affirma-

tive defenses 14 and 15, or the proposed cross-claim. In a

previous order, intervenors were given permission to assert

the rights of the natural parents of children in foster care,

but only in respect of those issues raised in plaintiffs’ sec-

ond amended complaint. Order of August 15, 1974. Inter-

venors’ affirmative defenses 1-13 are genuinely responsive

to plaintiffs’ lawsuit and should be considered as part of

this ease. Affirmative defenses 14 and 15 raise issues sim-

ilar to those rejected in the order of August 15, 1974 as

likely to expand the scope of the lawsuit. For example,

intervenors assert that, for a number of reasons, natural

parents do not give informed consent when they place chil-

dren in the foster care system.

Likewise, intervenors’ proposed cross-claim seeks to ex-

pand the issues of this lawsuit. As is amply demonstrated '

by the allegations in the cross-claim, intervenors again seek

to raise questions concerning the placement of children in

foster care, and the relationship between natural parents

and the foster care system. Intervenors have not narrowed

50a

Appendiz ‘‘E’’, Opinion.

their cross-claim to deal with the rights of natural parents,

if any, that are or might be infringed were the three-judge

court to grant increased procedural rights to plaintiff

foster parents or foster children.

Intervenors move that Lillian Collazo be joined as an ad-

ditional party. That motion is granted. Ms. Collazo is the

natural parent of a child in the foster care system. She has

a legitimate concern with the procedures that guide that

system, and therefore the questions of law raised in this

case apply to her as well as to the other intervenor-defend-

ants. Rule 20(a), F.R.Civ.P.

In sum, the motions to certify a class of plaintiff foster

parents, plaintiff foster children, and intervenor-defendant

natural parents are granted. Intervenors’ motion to amend

their complaint is granted except for affirmative defenses

14 and 15 and the cross-claim, which are not allowed; and

intervenors’ motion to join an additional party is granted.

So ORDERED.

Dated: New York, New York

March 22, 1976

Robert L. Carter

Ropert L. Carter

U.S. D. J.

5la

Appendix “F”, New York Law and Regulations.

New York Social Services Law

§ 383

2. The custody of a child placed out or boarded out and

not legally adopted or for whom legal guardianship has not

been granted shall be vested during his minority, or until

discharged by such authorized agency from its care and

supervision, in the authorized agency placing out or board-

ing out such child and any such authorized agency may in

its discretion remove such child from the home where

placed or boarded.

§ 400. Removal of children

. 1. When any child shall have been placed in an institu-

tion or in a family home by a commissioner of public

welfare or a city public welfare officer, the commissioner

or city public welfare officer may remove such child from

such institution or family home and make such disposition

of such child as is provided by law.

2. Any person aggrieved by such decision of the com-

missioner of public welfare or city welfare officer may

appeal to the department, which upon receipt of the appeal

shall review the case, shall give the person making the

appeal an opportunity for a fair hearing thereon and

within thirty days render its decision. The department

may also, on its own motions, review any such decision

made by the public welfare official. The department may

make such additional investigation as it may deem neces-

sary. Ali decisions of the department shall be binding

upon the public welfare district involved and shall be

complied with by the public welfare officials thereof.

18 New York Code Rules and Regulations

§ 450.10 Removal from foster family care. (a) When-

ever a social services official of another authorized agency

52a

Appendia ‘‘F’’, New York Law and Regulations.

acting on his behalf proposes to remove a child in foster

family care from the foster family home, he or such

other authorized agency, as may be appropriate, shall

notify the foster family parents, in writing of the inten-

tion to remove such child at least 10 days prior to the

proposed effective date of such removal, except where

the health or safety of the child requires that he be

removed immediately from the foster family home. Such

notification shall further advise the foster family par-

ents that they may request a conference with the social

services official or a designated employee of his social

services department at which time they may appear, with

or without a representative to have the proposed action

reviewed, be advised of the reasons therefor and be

afforded an opportunity to submit reasons why the child

should not be removed. Each social services official shall

instruct and require any authorized agency acting on his

behalf to furnish notice in accordance with the provisions

of this section. Foster parents who do not object to the

removal of the child from their home may waive in writing

their right to the 10 day notice, provided, however, that

such waiver shall not be executed prior to the social serv-

ices official’s determination to remove the child from the

foster home and notifying the foster parents thereof.

(b) Upon the receipt of a request for such conference,

the social services official shall set a time and place for such

conference to be held within 10 days of receipt of such

request and shall send written notice of such conference

to the foster family parents and their representative, if

any, and to the authorized agency, if any, at least five days

prior to the date of such conference.

(ec) The social services official shall render and issue

his decision as expeditiously as possible but not later than

five days after the conference and shall send a written

53a

Appendix ‘‘F’’, New York Law and Regulations.

notice of his decision to the foster family parents and their

representative, if any, and to the authorized agency, if any.

Such decision shall advise the foster family parents of

their right to appeal to the department and request a fair

hearing in accordance with section 400 of the Social

Services Law.

(d) In the event there is a request for a conference, the

child shall not be removed from the foster family home

until at least three days after the notice of decision is sent,

or prior to the proposed effective date of removal, which-

ever occurs later.

(e) In any agreement for foster care between a social

services official or another authorized agency acting on his

behalf and foster parents, there shall be contained therein

a statement of a foster parent’s rights provided under this

section.

d4a

Appendix “G”, Opinion.

UNITED STATES DISTRICT COURT

SourHern District or New York

74 Civ. 2010

OrGanizaTION oF Foster Famimiers ror Equality anp Re-

rorM; Mape.ine Smiru, on her own behalf and as next

friend of Danette and Eric Ganpy; and Ratpx and

Cristiane GoLpBerG, on their own behalf and as next

friend of Rarazt Serrano, on behalf of themselves and

all others similarly situated, Plaintiffs,

—against—

ames Dumpson, individually and as Administrator of the

, NEw Yona Crry Human Resources ADMINISTRATION ;

Euimzaseta Berxe, individually and as Director of the

New Yorx Crry Bureau or Camp Wetrare, and as Act-

ing Assistant Administrator of New York Crry Speci

Services ror Cumpren; Apotin Dat, individually and

as Director of the Drvision or Iyrer-AGeNcy RELATION-

snips of the Bureau or Camp Wexrare; and James P.

O’Nemx, individually and as Executive Director of

CatHotic Guarpian Society or New York,

Defendants,

: Rosa Diaz; Mary Rosrns; and Dororuy

“~— anaes A on behalf of themselves and all others

similarly situated, Intervenor-Defendants.

Marcia Robinson Lowry, Esq.

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

Attorney for Plaintiffs

55a 56a

Appendix “G”, Opinion. Appendiz “G”, Opinion.

O ization of Foster Families for

Fqualit

y and Reform

Madeline Smith

Ralph and Christiane Goldberg,

on behalf of themselves and

others similarly situated

Helen L. Buttenwieser, Esq.

575 Madison Avenue

New York, New York 10022

Attorney for the Children,

Danielle and Eric Gandy

Rafael Serrano, on behalf of

themselves and all others

similarly situated

Marttie Louis Thompson, Esq.

Community Action for Legal

Services, Inc.

335 Broadway

New York, New York 10007

Attorney for Intervenor-

Defendants

Naomi Rodriguez

Rosa Diaz

Mary Robins

Dorothy Nelson Shabazz

Adrian Burke, Esq

Corporation Counsel

mg Buildin

New York, New York 10007

Attorney for Defendants

James Dumpson

Elizabeth Beine

John F. O’Shaughnessy, Esq.

County Attorney of N Ate

Nassau County Executive Building

West Street

Mineola, New York 11501

Attorney for Defendant

James P. O’Neill

Louis J. Lefkowitz, Esq.

Attorney General

Two World Trade Center

New York, New York 10047

Attorney for Defendants

Shapiro and Lavine

OPprInion

The Decision to Appoint Separate

Counsel for the Children

Plaintiffs brought this class action pursuant to 42 U.S.C.

§ 1983 seeking a declaration that Sections 383(2) and 400

of the New York Social Services Law and 18 N.Y.C.R.R.

450.14 violate the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the Constitution.

The complaint also requests that a three-judge court be

convened pursuant to 28 U.S.C. §§ 2281 and 2284 and that

the defendant agencies and officers be enjoined from

enforcing the statutes and regulation. The three-judge

court was appointed by an order dated June 27, 1974.

Plaintiffs Madeline Smith and Ralph and Christiane

Goldberg are foster parents who have taken children into

their homes and cared for them under the program pro-

vided by the New York Social Services Law. The com-

plaint alleges that Mrs. Smith and the Goldbergs are

members of two sub-classes which together are comprised

of over one thousand foster parents who have cared for

foster children continuously for more than one year.

(Second Amended Complaint, Paragraph 6 (hereinafter

“Complaint”)). Pursuant to Rule 23(a) (3), it is alleged

that the claims of these plaintiffs are typical of the claims

of all foster parents ‘‘who are in jeopardy of having

[foster] children summarily removed pursuant to * * *

New York Social Services Law §§ 383(2) and 400, and 18

57a

Appendix “GQ”, Opinion.

NYCRR 450.14, which violate their constitutional rights to

due process and [e]qual protection of the law.’’ (Com-

plaint, Paragraph 8).

Plaintiffs Danielle and Eric Gandy, who are six and nine

years old respectively, are the foster children of Mrs.

Smith. Rafael Serrano, eleven years old, is the foster

child of the Goldbergs. These children, who appear by

their foster parents as next friends, claim to represent a

sub-class of over one thousand foster children who have

been in the same foster homes for more than one year.

(Complaint, Paragraph 7). It is alleged that their claims

are typical of those of foster children ‘‘who have been

placed in stable, loving foster homes, and who are in

jeopardy of losing what has become their family through

the arbitrary, standardless procedures authorized by [the

statutes and regulation here challenged].’’ (Complaint,

Paragraph 10).

The same counsel from the New York Civil Liberties

Union originally represented both the named foster

parents and their class and the named foster children and

their class. Furthermore, the Civil Liberties Union

counsel proceeded on behalf of both groups with a single

set of pleadings.

The question of a possible conflict of interest between

the foster parents and the children was raised in a hearing

before this court on August 5, 1974. After consulting with

my two colleagues on the three-judge court, I decided that

in view of the potential conflict, separate counsel should be

appointed for the children. On October 25, 1974, counsel

for all parties were convened and informed of my decision

and of my tentative choice of Helen L. Buttenwieser, Esq.,

to represent the children. At the meeting of counsel, Mar-

cia R. Lowry, Esq., of the Civil Liberties Union first in-

formed me that if she were required to choose between the

foster parents and the children, she would prefer to con-

58a

Appendix “G”, Opinion.

tinue to represent the children. She stated that she had

made a personal commitment to the named children to rep-

resent them and that the foster parents had, from the out-

set, expressed their willingness to obtain separate counsel

for themselves should a conflict arise. I indicated at that

time that I thought that the decision to appoint indepen-

dent counsel for the children was correct. My selection of

Ms. Buttenwieser was confirmed by letter to all counsel on

October 29, 1974.

The Civil Liberties Union brought on the instant motions

by an order to show cause dated November 7, and oral ar-

gument was heard on November 15. The Civil Liberties

Union lawyers seek an order pursuant to Rule 17(c),

F.R.Civ.P., continuing the Civil Liberties Union as coun-

sel to the foster children and requiring the foster parents

to secure substitute counsel. In the alternative, the Civil

Liberties Union counsel move for an order pursuant to

Rule 17(c) appointing Dr. Kenneth Clark as guardian ad

litem to the children. Both motions are denied.

The Pleadings Filed by the Civil

Liberties Union Necessitated the

Appointment of Separate Counsel

for the Children

The primary reason for the original decision to appoint

separate counsel for the children was the court’s concern

over the potential conflict of interest between the foster

parents and the children.

The decision to replace the Civil Liberties Union as

counsel for the children, rather than require the foster

parents to obtain separate counsel, was based on the

court’s determination that the Civil Liberties Union could

not adequately protect the interests of the children under

the pleadings it had filed. Upon examination of the plead-

ings, the court was most concerned that all of the allega-

59a

Appendix “G”, Opinion.

tions of the complaint were based on the uncritical assump-

tion that the rights and interests of the children are

identical to those of the foster parents. After claiming

that each of the challenged procedures violated a partic-

ular right of the foster parents, the complaint alleged that

the procedure violated precisely the same right of the

foster children. The complaint made no mention what-

ever of possible interests of the children which might be

adverse to those of the foster parents.

It appeared to the court that the effect of these plead-

ings was to align the children squarely with the foster

parents. If the Civil Liberties Union were to proceed on

behalf of the children under pleadings which assumed that

the interests of the children and the foster parents were

identical, the result would be to foreclose litigation of any

dispute between the children and the foster parents. Ac-

cordingly, it seemed essential that separate counsel be

obtained for the children, rather than for the foster par-

ents, and that the substitute counsel for the children file

a fresh set of pleadings.

The complaint alleges that one of the defendant agen-

cies arbitrarily decided to remove the children, Eric and

Danielle Gandy, from plaintiff Madeline Smith’s home, and

that although Mrs. Smith was notified of the agency’s deci-

sion, she was not informed of the reasons therefor. Plain-

tiffs also claim that since the administrative conference

450.14 is not regulated by written standards, it did not

satisfy due process. (Complaint, Paragraphs 22-41)

The complaint also alleges that another of the defendant

agencies plans to remove Rafael Serrano from the Gold-

bergs’ home according to the same procedure. (Complaint,

Paragraphs 42-57)

Plaintiffs claim further that the notification and admin-

istrative conference procedures violate the rights of Mrs.

Smith, the Goldbergs and members of their class not to be

60a

Appendiz “G’’, Opinion.

deprived without due process of the “fundamental right to

establish a home and bring up children’’ and of their rights

under the Fourteenth Amendment generally. (Complaint,

Paragraphs 59-61)

The paragraphs that follow allege violations of the foster

parents’ and the children’s rights in practically identical

terms. With respect to the foster parents, it is alleged

that §383(2) is “unconstitutionally vague” and violates

their “fundamental rights to establish a home, bring up

children and to enjoy those privileges long recognized as

essential to the pursuit of happiness and liberty encom-

passed within the due process guarantee of the Fourteenth

Amendment.” (Complaint, Paragraph 63) The allegations

on behalf of the foster children respecting §383(2) are

identical in substance and in language, except that the ref-

erences to establishing a home and bringing up children

have been deleted. (Complaint, Paragraph 64) In iden-

tical language, it is alleged that § 400 of the Social Services

Law violates the constitutional rights of foster parents and

children. (Complaint, Paragraphs 66 and 67)*

The balance of the allegations in the complaint also as-

sume that the rights and interests of the foster parents

and the children are identical. Thus it is alleged that the

absence of regulations interpreting §{ 383(2) and 400, the

administrative conference procedure, and the “internal pro-

cedure’’ adopted by defendant Dumpson and his agents in

June of 1974, violate the constitutional rights of all “plain-

tiffs and members of their class.” (Complaint, Paragraphs

68, 72 and 73) The complaint claims further that the dis-

cretion given to private child-care agencies and the absence

of any provision for a post-removal hearing for foster par-

ents under the supervision of such private agencies de-

prive “plaintiffs Madeline Smith and Eric and Danielle

* Paragraph 64 refers only to Rafael Serrano, while Paragraph

67 refers to all three named children.

6la

Appendix “G”, Opinion.

Gandy and members of their class” of their rights under

the Due Process and Equal Protection Clauses. (Com-

plaint, Paragraphs 69 and 70) Two paragraphs allege in

identica! language that the absence of a prior hearing vio-

lates the Fourteenth Amendment rights of the named chil-

dren and members of their class and the named foster

parents and members of their class respectively. (Com-

plaint, Paragraphs 76 and 77)

In addition to declaratory relief, the complaint requests

that the defendants be enjoined from removing children

who have lived with foster parents for more than one year

without the “due process safeguards of adequate and spe-

cific notice and a prior hearing.”

The Decision to Appoint Separate

Counsel Reaffimed

The Civil Liberties Union requests that the court re-

verse its appointment of Ms. Buttenwieser as counsel for

the children and reinstate the Civil Liberties Union.

Under Rule 17(c), the court is authorized and directed

to make “such * * * order as it deems proper for the pro-

tection’’ of the foster children.2 The court made the

required determination as to the best means of protecting

the children when it made the initial decision to appoint

Ms. Buttenwieser as separate counsel. On this motion

under Rule 17(c), it has re-examined its conclusion. As set

forth more fully below, the court remains convinced that

* The full text of the third sentence of Rule 17(c) is as follows:

‘*The court shall appoint a guardian ad litem for an infant

or incompetent person not otherwise represented in an action

or shall make such other order as it deems proper for the pro-

tection of the infant or incompetent person.’’

The fact that the children were already represented at the time

of Ms. Buttenwieser’s appointment did not preclude this court from

making the appointment. See Zaro v. Strauss, 167 F. 2d 218, 220

(Sth Cir. 1948) (appointment of guardian ad litem) ; 6 C. Wright

and A. Miller, Federal Practice and Procedure, § 1570, (1972 ea).

62a

Appendiz “G”, Opinion.

there exists a potential conflict of interest between the

foster parents and the children, and that the Civil Liberties

Union cannot adequately protect the interests of the chil-

dren under the pleadings it has filed.

In addition to its duty under Rule 17(c), since this is

a class action, the court is subject to a duty under Rule

23(a) (4) to insure that plaintiffs will ‘‘fairly and ade-

quately protect the interests of the class’’ of foster

children. The determination required by Rule 23(a) (4)

is left to the discretion of the trial court, Mersay v. First

Republic Corp. of America, 43 F.R.D. 465, 470 (S.D.N.Y.

1968), and an appellate court will not reverse the lower

court’s determination ‘‘in the absence of improvident

action.’’ Pelelas v. Caterpillar Tractor Co., 113 F. 2d 629,

633 (7th Cir. 1940), cert. denied, 311 U.S. 700 (1940).

Rule 23(a) (4) requires, inter alia, that the court assure

itself that counsel for the representative parties will pros-

ecute the action vigorously on behalf of the class. See

Herbst v. Able, 47 F.R.D. 11, 15 (S.D.N.Y. 1969); Fogel

v. Wolfgang, 47 F.R.D. 213, 216 (S.D.N.Y. 1969).

Ordinarily this issue would be resolved as a part of the

court’s decision on plaintiffs’ pending motion for a class

action determination. However, the issue of the children’s

counsel should be settled prior to the hearing before the

three-judge court on the class action and other motions

so that the children may be fully represented at that hear-

ing. In Doe v. Norton, 365 F. Supp. 65, 69 (D. Conn. 1973),

the plaintiff unwed mothers and illegitimate children

challenged the constitutionality of certain Connecticut

welfare legislation before a three-judge court. Prior to

the decision on the class action motion by the three-judge

court, Judge Blumenfeld considered such class action

questions as typicality and adequate representation, and,

on his own motion, appointed separate counsel for the

children. His decision was based on a finding that “some

of the interests which the mothers urge relating to the

63a

Appendix “G”, Opinion.

subject matter of this action are neither typical of nor

congruent with the interests of their children, but actually

conflict with them in several respects.’’ 365 F. Supp. at 69.

For similar reasons, I have decided to deny the motion

of the Civil Liberties Union in the instant case, and, pur-

suant to my power under Rules 17(c) and 24(a)(4), I re-

affirm the appointment of Ms. Buttenwieser as independent

counsel to the children.

The case is of vital importance to the well-being of more

than one thousand children. In the course of this litiga-

tion, it is essential that the court make a thorough and

searching examination of the interests of the natural par-

ents, foster parents, the children and the public. The in-

terests of all parties other than the children are well repre-

sented by counsel in this proceeding. Therefore, the court

must look to and rely heavily on the children’s counsel to

articulate and define their interests. The children’s coun-

sel must advocate the rights of the children and the children

alone, vigorously, independently, and without regard to

the interests of any other party to the action.

After re-examining the complaint, the court remains con-

vinced that its primary objective is to secure the foster

paic.uts’ claimed ‘‘fundamental rights to establish a home

and bring up children.’’ The result is that the interests of

the children are asserted only insofar as they coincide with

the foster parents’ interests.

The complaint and motion papers filed by the Civil

Liberties Union fail to give proper consideration to several

possible conflicting interests of the children which have been

suggested by other parties to this litigation. For example,

it has been suggested that the notice and hearing proce-

dures proposed by the plaintiffs may prevent the expe-

ditious removal of a child in an emergency situation

where the foster parents are unfit to care for the child.

The court must consider the situation where it is in the

interest of the child to leave the foster home as quickly

64a

Appendix “G’, Opinion.

as possible to return to his natural parents or to take ad-

vantage of a scarce place in a special school. The attach-

ment of the foster children to their natural parents should

be considered. Finally, the court must assess the possi-

bility that a child’s needs and desires may be determined

more effectively through examination by the trained per-

sonnel provided by state social welfare agencies than

through an adversary hearing.

Considerations such as these have hitherto been ad-

vanced by one or another of the defendants, who, like the

foster parents, have some interest of their own to advance

simultaneously. It is my view that there must be inde-

pendent counsel whose sole commitment is to the children,

and who is therefore free to advocate their interests vigor-

ously even though they may conflict with the interests of

some other party to this litigation.

The Civil Liberties Union continues to adhere to its posi-

tion that there is no conflict between the interests of the

foster parents and those of the children. (Memorandum

of Civil Liberties Union, Page 1.)

In view of the insistence by the Civil Liberties Union in

its pleadings and on this motion that the children should

be aligned with the foster parents, and its attempt to fore-

close the litigation of any dispute between the children

and the foster parents, the court believes that the Civil

Liberties Union cannot provide effective assistance to the

court in defining, articulating and exploring those inter-

ests of the children which are potentially adverse to those

of the foster parents.

Ms. Lowry of the Civil Liberties Union once more directs

our attention to her personal commitment to represent the

named children, and, in the event of a conflict, to require

the foster parents to obtain separate counsel.

I am not disposed to lend much weight to this commit-

ment, for Ms. Lowry has undertaken to represent not only

the named children, but an entire class of more than 1,000

65a

Appendix “G”’, Opinion.

foster children who had no voice in retaining the Civil

Liberties Union in the first instance. It is the responsi-

bility of the court to insure that the class is represented by

counsel who will consider and advocate the needs and de-

sires of children in a wide variety of circumstances, some

of which may differ greatly from those of the three named

children.

Furthermore, it is most doubtful that the named children,

who are six, nine and eleven years old, can make an in-

formed choice of counsel to represent their own interests.

(See Affidavit of Helen L. Buttenwieser, Paragraph 5) I

think that I am justified in attaching no weight whatever to

the named children’s choice as it affects the representation

of the other children in the class.

The Civil Liberties Union has chosen a uniquely inoppor-

tune time to submit affidavits of foster parents averring

that the foster children wish Ms. Lowry to continue to

represent them. The submission of these affidavits attests

the Civil Liberties Union’s apparent inability to appreciate,

much less to share, this court’s concern over a potential

conflict of interest between the foster parents and the

children.

The Civil Liberties Union correctly states that this court

has not found that the Civil Liberties Union has violated

the Code of Professional Responsibility.* However, the

Civil Liberties Union argues further that in the absence

of such a finding, the court may not provide substitute

counsel for the class of children.

I disagree. As stated above, Rules 17(c) and 23 (a) (4)

provide ample authority for the appointment of separate

counsel upon a determination that such appointment is

necessary to insure adequate representation of the class of

children. See Doe v. Norton, 365 F. Supp. 65 (D. Conn.

* There has been no suggestion that the Civil Liberties Union

counsel have not discharged their duties according

standards of our profession. a

66a

Appendiz “G’, Opinion.

1973). The latter determination does not require a finding

that the original counsel to the children have violated

professional ethics.

The Civil Liberties Union also charges that Ms. Butten-

wieser cannot provide independent representation for the

children in view of her past representation of child-care

agencies which place foster children. I do not, however,

believe that the fact that Ms. Buttenwieser previously rep-

resented organizations that might have some interest in this

litigation is, in itself,* of any consequence.

In addition, on oral argument, the Civil Liberties Union

contended that in view of the position taken by Ms. Butten-

wieser in her answer filed on November 13, the court’s re-

affirmation of her appointment on this motion is tanta-

mount to a determination on the merits. It should be noted,

however, that when the court first appointed Ms. Butten-

wieser in October, it had no inkling whatever of the posi-

tion she would take on the issues in this case. Thus her

selection was in no way influenced by a consideration of

the merits.

Furthermore, although Ms. Buttenwieser ultimately did

take a position on the issues in the case, the court has

every reason to believe that she did so upon consideration

of the interests of the children alone, and without regard

to the interests of any other party to this litigation.

I disagree with the Civil Liberties Union’s contention

that a full evidentiary hearing should have been held be-

fore the appointment of separate couusel for the children.

In each of the cases cited by the Civil Liberties Union, one

party sought to disqualify counsel for the opposing party,

charging serious violations of professional ethics. F.g.,

Laskey Bros. v. Warner Bros. Pictures, 224 F. 2d 824 (2d

Cir. 1954); Consolidated Theatres v. Management Corp.,

‘There is, of course, no suggestion of any unauthorized use of

confidential information obtained in representing a former client.

67a

Appendiz “G”, Opinion.

216 F. 2d 920, 921-22 (2d Cir. 1954). As noted, the instant

case does not involve charges of ethical] violations, and the

court has acted on its own motion on behalf of the children

in retaining counsel for them. The court’s action is similar

to that of a party in retaining counsel on his own behalf,

and that is not usually the occasion for an evidentiary

hearing. Furthermore, Rule 17(¢) does not require such a

hearing when the court appoints counsel for an infant.

Moreover, since a court may determine the competence of

counsel, as required by Rule 23 (a)(4), without an eviden-

tiary hearing, solely on the basis of the pleadings, Rosen-

blatt v. Omega Equities Corp., 50 F.R.D. 61, 64 (S.D.N.Y.

1970), a court should be able to determine on the basis of

the pleadings alone whether a potential conflict may exist

and whether counsel for the class may not be willing to

press all possible claims of the class.

Finally, it is to be noted that, contrary to the implica-

tion of the Civil Liberties Union’s memorandum, this court

has given the Civil Liberties Union an adequate oppor-

tunity to be heard on the issue of counsel, including an

informal conference and full oral argument on the instant

motion.

The Civil Liberties Union also contends that the court’s

action in replacing it by independent counsel for the chil-

dren deprives the children of the right to appear by coun-

sel of their own choice, a right which was extended to

minor children by Application of Gault, 387 U.S. 1 (1967).

Gault seems to bear only a remote relation to the issues

on this motion since it concerns the right of a single 15-year

old minor and his parent to have the assistance of counsel

in a juvenile delinquency proceeding which was “compar-

able in seriousness to a felony prosecution.” 387 U.S. at 36.

Furthermore, this court has obviously not deprived the

class of children of counsel altogether. Indeed, in appoint-

ing separate counsel, the court has attempted to vindicate

the right of the entire class of children to effective, dis-

68a

Appendix “G’”’, Opinion.

interested counsel. As to the named children’s right to

choose their own counsel, this right is necessarily subject —

to some limitation where the named parties seek to pursue

their interests through a class adjudication which will bind

over a thousand other persons who had no part in the

original selection of counsel.

Motion for Appointment of

Guardian Ad Litem

The Civil Liberties Union moves in the alternative for ~

the appointment of Dr. Kenneth Clark as guardian ad litem

to the children, pursuant to Rule 17(c). It is proposed

that Dr. Clark be permitted to make an independent eval-

uation of the issues in the case and appoint counsel who,

in his judgment, will best protect the interests of the chil-

dren.

Rule 23 imposes a duty on the court to assure that a class

is adequately represented by counsel, and Rule 17(c) re-

quires the court to make provision for the protection of

an infant.’ This court has discharged those duties by ap-

pointing Ms. Buttenwieser as counsel, and it refuses to

shift its responsibilities to a guardian ad litem.

Thus the motion for the appointment of a guardian

ad litem is also denied.

So OrpERED.

Dated: New York, New York

December 10, 1974

Rosert L. Carter

U.S.D.J.

5 Rule 17(c) does not require the appointment of a guardian

ad litem, but authorizes the court to make any other order which it

‘*deems necessary for the protection’’ of the foster children.

”-

69a

Appendix “H”, Answer.

UNITED STATES DISTRICT COURT

SouTHERN District or New York

74 Civ. 2010 RLC

. 4

ORGANIZATION OF Foster Famities ror Equauity anp Re-

FORM; MapELINE SMiTH, on her own behalf and as next

friend of Danette and Eric Ganpy; and RaupxH and

CHRISTIANE GOLDBERG, on their own behalf and as next

friend of RaraeL Serrano, on behalf of themselves and

all others similarly situated,

Plaintiffs,

—against—

James Dumpson, individually and as Administrator of the

New York City Human Resources ADMINISTRATION;

EvizaBetH Berne, individually and as Director of the

New York City Bureau or Cuitp WELFARE, and as Act-

ing Assistant Administrator of New York Crry Spreciau

Services FoR CHImLpREN; ApoLIN Dau, individually and

as Director of the Division or InteR-AGeNcy RELaTION-

SHIPS OF THE Bureau oF CuitpD WELFARE; and James P.

O’Nem., individually and as Executive Director of

CaTHotic GuarpDIAN Society oF New York,

Defendants.

The children DanreL_Le and Eric Ganpy, and RarakEt Ser-

RANO, and all other children similarly situated, by their

attorney Heten L. Butrrenwieser, for their answer to the

second amended complaint herein:

For A FIRST DEFENSE

1. Denies the allegations of paragraphs 5, 9, 10, 11, 59,

60, 61, 63, 64, 66, 67, 68, 69, 70, 71, 72, 73, 75, 76 and 77 of

the second amended complaint.

70a

Appendix “H”, Answer.

2. Lacks knowledge or information sufficient to form a

belief as to the truth of the allegations of paragraphs 6,

7, 8, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,

29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 42, 43, 44, 45, 46,

47, 48, 49, 50, 51, 52, 53, 54, 57 and 58 of the second amended

complaint.

3. Lacks information sufficient to form a belief as to the

allegations of paragraph 38 of the second amended com-

plaint except admits that the Catholic Guardian Society of

New York is a child-care agency authorized, approved and

regulated by the State of New York and supervised by

state and city officials.

For A SECOND DEFENSE

4. The Court lacks jurisdiction of the subject matter.

For A THIRD DEFENSE

5. The second amended complaint fails to state a claim

upon which relief can be granted.

For A FOURTH DEFENSE

6. The Plaintiffs have neither legal capacity nor stand-

ing to maintain this action, in that the rights sought to be

protected are those belonging to the children and not to

the Plaintiffs.

For A FIFTH DEFENSE

7. Deny that the persons whom the Plaintiffs purport

to represent as a class are properly and fairly represented

by the Plaintiffs.

8. The interests of the children whom Plaintiffs pur-

port to represent, would be vitally and adversely affected

7la

Appendiz “H”, Answer.

by the granting of the relief prayed for in the second

amended complaint.

For A SIXTH DEFENSE

9. Plaintiffs have failed to exhaust their administra-

tive remedies.

WHEREFORE, it is respectfully prayed that judgment be

entered dismissing the second amended complaint and

granting such other relief as to the Court seems just and

proper.

Dated: New York, New York

November 8, 1974

Helen L. Buttenwieser

Hevten L. ButTreENwIikseR

Attorney for the children,

Daniell and Erie Gandy and

Rafael Serrano, and all other

children similarly situated

Office and P.O. Address

575 Madison Avenue

New York, New York 10022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.