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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0409%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 816

## Text

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

dn

ne

\
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
vv

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, 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.

a
ww

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)

-%
os

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

By

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)

,
ww

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

’™
vv

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

eo
we

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
I

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.

I.

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.

,
4

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
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.

+
aa

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0409%3A02. Public record. Not legal advice.