Jurisdictional Statement — Blackburn v. McKenzie

Supreme Court brief1977

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IN THE

" SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 76-5193

NAOMI RODRIGUEZ; MARY ROBINS; DOROTHY NELSON SHABAZZ; and

LILLIAN COLLAZO, on behalf of themselves and all others

similarly situated,

Appellants

~against-

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,

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

JURISDICTIONAL STATEMENT

MARTTIE L. THOMPSON

Community Action for

Legal Services Inc.

Attorney for Appellants

Rodriguez; Robins;

Shabazz; and Collazo

335 Broadway

; New York, New York 10013

Louise Gruner Gans Tel. (212) 966-6600

of Counsel

Table of Authoritics....

Judament Appealed From..

Opinions Below....eeeees

Jurisdiction... ccccceses

Questions Presented.....

Statutes and Regulations

Statement

of the Case...

NDE X

Involved..

—_—— - ee - ee ee re oe ee

ATGUMENC.-ccccccseeeessoessesesesesssssseseesesere

POINT I: THE DISTRICT COURT ERRED WHEN IT

ADJUDICATED WITH RESPECT TO THE

RIGHTS OF CHILDREN SINCE THERE WAS WO CASE

OR GONTROVERSY WITH RESPECT TO THOSE RIGHTS

AS REQUIRED BY ARTICLE III, §2 OF THE

ONSTITUTION AND FOSTER Accerggenn WERE

ED FROM ASSERT THE CHILDREN'S

Peeoseseeeeseoeeeeeee eee eeeoeaseeaeaeec eens eee eo eeee

POINT II: IN THE CONTEXT OF THE NEW YORK

FOSTER CARE SYSTEM, NO COGNIZASBLE

LIBERTY INTE ST OF A CHILD IS INFRINGED bY

THE DECISTO! PUBLIC CHILD CARE OFFICIALS

‘ 3 — N

FOSTER CARE BACK HC TO THE CHILD'S PARENTS,

\ENELY BECAUSE THE CHILD HAS LIVED IN A

FOSTER HOME POR “A YEAR OR MORE,” AND THE

PROCEDUR! > MANDATED BY THE pIsT RICT COURT

s\*\ «at ‘ e*ivd - -/ -- a shea + te ~

WE I } I ‘ r Cc = Si J . A [D I NA } » ROP! nr I? +« & * Ff er ff © *- * . *

POINT 11I: THE CLASS OF CHILDREN CERTIFIED

BY THE DIS R{ICT COUPT WAS TOO

BROAD AND DID NOT MEET “THE REQUIREMENTS OF

RULE 23, 23(a) (3) AND 23{(a) (4) OF THE

FEDERAL RULES OF CIVIL PROCEDURE... ceccceeces

POINT [V3 NTERVENOR DEFENDANTS WERE DENIED

DUE PROCESS UNDER THE FOURTEENTH

AMENDMENT WHEN THE DISTRICT COURT REFUSED TO

PERMIT WI TNESSLS TO TESTIFY AT THE TRIAL AND

ARBITRARILY LIMITED THEIR DEFENSES... .ceeecees

CONCLUSION: THE QUESTIONS PRESENTED BY THIS

APPEAL ARE S&S IBSTANTIAL AND OF

PUBLIC IMPORTANCE. THEIR RESOLUTION pcan

AFTECTS THOUSANDS OF PARENTS AND THET!

CHT N IN POSTER CARE IN THE STATE of NW

YO! D IN THE NATION. ‘THIS COURT SHOULD

NO ORAEBLE JURISDICTION. ccccccceseceeceese

(Continued)

INTERVENORS '

INTERVENORS

INTERVENORS '

APPENDIX

al Sa

" : i

"4°

“ao

Statutes and Regulations Involved

Amended Majority Opinion of Three-

Judge Federal Court for the

Southern District

Notice of Appeal to the United

States Supreme Court with Affidavit

of Ser

rvice

Authorization for Placement of

Child(ren) in Foster Care

Authorization to Place Child in

Foster Care

TABLE OF AUTHORITIES

Albertson’ Inc. v. Amalgamated Sugar Co.,

503 F 2d 459 (lOth Cir. 1974) ..eeeeeeeces

Armstror Manzo, 380 U.S. 545 (1965) ..0-

Barrett v. W.T.

(4th Cir. 1975

369 U.S. 186, 204 (1962)....

Barre ‘ Jackson, 346 U.S. 249 (1953) o6

Boone \ n, 258 F. Supp. 1143

(S.D Y 1969) aff'd 412 F. 2d 85/7

cert 396 U.S. 1024 (1970). .-eeees

Matter of Ellery C. Vv edlich, 32 N.Y. 2d

580, 347 N.Y.S. 2nd 51.300 N.E. 2nd

421 (J / WPRVUELELERELEEL Ce ee i.

Cc 3 B 412 F. Supp. 593

(S.D TOTE) cdccecceseveessacoenceases

’ “* P -_ . c > r oc

1 re l P ? Mis 2d 1008, 35 1.Y¥.S

2a 3{ ( ] Ct Y County 1974)..-+«-.

D ff v. Mol , 34. N.¥. 24 887, 359

t : 2d 281, 316 N.f 2d 716 (1974)...

ser t vy. Baird, 405 U.S. 438, 443-46

(1972) eccccccccccscescsocress wrTTrrri ty ee

Ferg ‘ Skrupa, 372 U.S. 726 (1963)...

F] v. Cohen, 292 U.S. 83 (1968)..---ee0-

Ginsberg v. New

Goldberg v. Kel

Goss v. Lopez,

Joint. Anti-Fase

7 8.8. 1 (RSET) cccccceecoses

York, 390 U.S. 629 (1968)..

ly, 397 U.S. 254 (1970)...

419 U.S. 565 (1975)....-- ove

st Refugee Committee v.

Ss 123, 168 (1951)....- oe

vie, 537 RD 98 (N.D. Tell

405 i BOG s.cecsceeneuce

Page

19,24

10,19

. iii

Matter of Carla L., 357 N.Y.S. 2d 987, at

998 45 A.D. 2d 375 (lst Dept. 1974)....

Levy v. Louisiana, 351 U.S. 68 (1968)...

Lindsay v. Normet, 405 U.S. 56 (1972)...

In re Custody of Mack, 81 Misc. 2d 802

°367 N.Y.S. 2d 644 (Family Ct. N.Y.

County 1975) ...eceeeees Feceecccecese ogeee

May v. Anderson, 345 U.S. 528, 533 (1953)

Matthews v. Eldridge, U.S.

44 U.S.L.W. 4224, 4229 (february 24,

ID7IE) . ccvcccecvcecesses see ene oe bne oe

McKeiver v. Pennsylvania, 403 U.S. 528

(1971) cc ccccccccccccecccseseseces eons

Meyer v. Nebraska, 262 U.S. 390 (1923).

Morrisey v. Brewer, 408 U.S. 471 (1972)..

Oatis v. Crown Zellerbach Corp., 399

PF 24 436 (Sth Cir. 1968) .-ccccccccccces

In re Oceana International, Inc.

49 P.R.D. (S.D.M.Ye (EO) cccccecsvccess

O'Shea v. Littleton, 414 U.S. 488 at 494

ERO TE) cccesecce Sedeseeesedsecesocecesoues

Painter v. Pannister, 258 Iowa 1390, 140

’

1.W. 2€ 152 (1966) cert. denied 385

U.S. 949 (1967) ...cceces °

mle ex. rel. Anonymous v. Saratoga

Nor > 73 t , -

Dept. of Public Welfare, 30

A.D. 2d 756 (3rd Dept. 19668) ...cccceces

People ex rel. Kr

965, 113 N.E. 2

Oop

’ :

pv. Shepsky, 305 N.Y.

BOl (1953) .cccccscvees

Perez v. Sugarman, 499 F 2d 761 (2nd Cir.

1974) . ccc. ecceccccdsecsccecs °

Phillips v. Klassen, 502 F 2d 362 (D.C.

Cir. 1974) cert. denied 419 U.S. 996

ht sso nned Gi be eee

Pierce v. Society of Sisters, 268 U.S.

510 (1925) ...cceees ececes cocccccccccecs

Prince v. Massachusetts, 321 U.S. 158

C29SE) cocccccesesecceoeccese

Matter of Dionisio R., 366 N.Y.S. 2d

280 big, ) ae “eevee “ener eee “ee erneeneeeneee

Ramos v. Montgomery, 313 F. Supp. 1179,

(S.D. Cal. 19706), aff'd mem. 400 U.S.

1003 (1971) .cccccccseccs PPTTTTITiT

Reynolds v. Cochran, 365 U.S. 525 (1961)

Page

8,16,26

31]

Matter ot! e2 ' Dumpson, _—___.

383 ! d 883 ( 1S) ccccccese °

, . . . T

Saqers V Ye low Frei t tem in¢

. . ) Ee - "7 £ ,

529 I ” l (Sth LIX 19/6) eevee . “eee

Singlet< Vv 1ff, U.S. 44

U.S. L Wee 5213 ly 1, 1976).c«+e-e-. .

. 7 w S| Cc c f =

Skinner v. Oklah 1, 316 U-S 535 (1942) .

o : . ec;

Speiser v. Ran 11, 357 U.S. 513 (1958) ..--

_ ~% . : -

Spence Ch Ly ic ervics v. Polk,

~¢ +? ‘ , > - >) Q 2¢

2J . . a ; % Fr * 937, 9 39

(197 PT yvaereneetueee f see5unueeeneoneees eeee

4 aC 79)

St ley ‘ Tll is, 405 U.S. 645 (1972) .

Stat of New York ex rel. Wall vy. Lhotan,

7 , * —_. -

N L.J. March 1l, 19/0, §f 2. GBae &

. . aimee

i I febr > 3, 1976) : der and

: na “ —_— . _

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= ni ee

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Tr le e r T ’ 524 F 2d

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Tilest« } > = l 44, 46 (1 3).

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iw@ d Do) cece eseeeeeeeeeee oeeee

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Unite } , 3262 U. 17, 21-22

1°

(1 JRpeoeoaooaonosoooe oe 08 eeeeeveveveee780°8 *-e “eve

‘ — 2 see ww ,

@., 77 Mise. 2a 374, 355 N.Y¥.S.

y A ; yw C ? n+ 1974

a6, 2%: (} ts x Co re 1974)... ee

We! “ty Mutual Ir ranc oo

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Wolff \ icDonnell, 418 l 539 (1974)..-.

Unit State Constitutic

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Articie I + S 2 “eevee “eee *-* eoeevevee eee ee

Fourteecnt New cccceces WTTTI Titi

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Federal Statutes, Regulation and Rules:

Q 1 c > 2989

23 v Riche « S L253 *“e © * “er eevee eeeseeeeeveeeee *e

52 ’ c . 7A

& * ¢ § 1343(3) “ee eee “eee “eeenoenvree **

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28 4 : Le 3 1343(4 “ener eve eeeeoeveveen ee *“*

28 U.S ce 990

VUedewe ZaU hbo ocooeveeeeveeenon eee 00 e0" *-.

Page

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15,18,19,24

3,11,12

3,4,14,17,29,

42 U.S.C. 5

42 U.S.C.A. §

Federal Rules

Federal Pules

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Statute:

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SR ia) (9) .cccccccceseaqeece

of Civil

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and Regulations:

Article Pueobeceeeces

Article 10..cccccecces

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Procedure

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JUDGMENT APPEALED FROM

IN THE

Appellants-Intervenors appeal from the final Judgment a

SUPREME COURT OF THE UNITED STATES order of the three-judge district court for the Southern District

of New York (Pollack, J., dissenting), entered on April 14, 1976.

OCTOBER TERM, 1976

Therein the District Court declared unconstitutional and enjoined

the enforcement of New York Social Services Law §§383(2) anc 400

No. 76-5193 7 . and 18 New York Codes Rules and Regulation (NYCRR) 450.14*, to

the extent said statutes and Regulation were applied by the

defendant agencies to move children from foster homes

NAOMI RODRIGUEZ; MARY ROBINS; DOROTHY NELSON SHABAZZ; and had been placed there by said agencies for “a year or more,”

LILLIAN COLLAZO, on behalf of themselves and all others ;

similarly situated, | without affording to the children notice and a prior hearing at

the child's parents, foster parents, and, where appropriat:

Appellants a representative of the child may be heard with respect to the

propriety of the proposed move. Appellants-Intervenors, pa nt

a 3 ; c —_— . . +

agesass of children in foster care, submit this statement to show that

Supreme Court of the United States has jurisdiction of the a

T * TM. J 2A CMme YD es o . . * rT. “

poe YIZATION OF FOSTER FAMILIES FOR EQUALITY AND REFORM; MADELINE. ' and that substantial federal questions are presented which re

SMITH, RALPH and CHRISTIANE GOLDBERG; GEORGE and DOROTHY i le wanes aI ; |

LHOTAN, on behalf of themselves and all others similarly situated, plenary review

- ce ~We

OPINIONS BELOW

Appellees

opinions below are attached in Appendices as follows:

1. The opinion of the majority of the three-judge court

ee ee (Lumbard C.J.; Carter, J.) dated March 29, 1976 declaring

ON APPEAL FROM THE UNITED STATES DISTRICT Pe ee eat

COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ; unconstitutional and enjoining the enforcement cf the ch ille: 5°

ae | "

statutesand regulation is annexed as Intervenors' Appendix

me the

. hee’

The several appellants' separate Joint Appendix A reproduc

JURISDICTIONAL STATEMENT March 22, 1976 version of this opinion, amended by the Court on

March 29, 1976. The earlier opinion is also the one erroneously

FL ee ee

reported at 411 F. Supp 1144, without the dissent.

Since renumbered 450.10 and hereinafter referred to by that

number.

Other opinions are attached in appellants’

6 on class certification is Appendix E; The Opinion and

er of Carter J. dated December 10, 1974 on assignment of

rate counsel for the children is Appendix G.

JURISDICTION

This class action was commenced by plaintiffs in the United

to/

te District Court for the Southern District of New York pursuant

.C. §1983 and 28 U.S.C. §§2201 and 2202 and 28 U.S.C.

243(3) and (4), to @eclare unconstitutional and enjoin the ;

t of New Yo Social Services Law §383(2) and 400 and

f 10. By Order entered August 19, 1974, a three-

oe cc 1 pursuant to 28 U.S.C. §228 and 2284.

nd Order of the three-judge district court

llack J., dissenti3 1s enterea@ on April 14, 1976, and

yed ‘for 30 days pending an application for a further stay

t} court. On the basis of such an application, an interim

y \ ranted by Mr. Justice Marshall, on May 12, 1976

r referral to and further order of the Court. On May 24,

6, the judgment and order was stayed by this Court pending

timely @ocketine of an appeal or appeals. A notice of

11 was filed by Appellants~Intervenors in the District Court

the Southern District on June 10, 1976.* New York State

New York City defendants and the children have also appealed.

jurisdiction of the Supreme Court to review the decision

direct appeal is conferred by Title 28 U.S.C. Section 1253.

Carvenors’ Appendix 3.

separately

appendices, as follows: The dissenting opinion

1976 is Appendix B; The

14, 1976 is

Order of Carter, J. ,dated March 22,

STATUTES AND

—— + -

Social Services Law §§323(2) and 400

Regulation 18 NYCRR 450.10 was direc

the following statutes: The Due

383(3) and 384-a;

383(1)°

lll,

7a . :

is Intervenors' Appendix

wt * hort

Court have

I. Did the cistrict

nstitution, to determin

a child voluntarily

temporary care and not for adoption,

be suparated from the foster

or her parents with the

has lived in the foster home

procedures mandated on the basis of

appropriate?

| BEST COPY AVAILABLE

The constitutionality of two state

Amendment to the Constitution, Ne York

Family Court Act, §§611 and 614.

notace aud a prior hearing in this

counse] for the children <« posed suc

children, and plaintiffstoster paren

this relief for children, were aisqu

II. In the context of the New

home in

consent of t

except aftcr notice and a prior hear

and of

tly cha

Process Cl

Soc

Domestic Relations Law,

The

action,

relief as

c +s

statutes,

ause

RECULATION INVOLVED

New York

a State Administrat}

llenged by plainti

Not directly challenged by plaintiff, but also involved were

Fourteent

of the

Co ;cCas w

Services Law,.s.

ial

§§110 and

text of

+} \, ek. +r

hts of ChisGea } »)

whor ¢ ' BHO i ?

when coure Ippo

harmful to

only party who c

‘ *

alif ie fre doir

rk oster care syst , ac

—— TTP -_ ee ae

Lc child carte a ncics 4

hate

saauv™

entit!

order

such a

es the

to return

right necessary anc

these statute

- hic

hone to nis

-——

he public child care official

ooo

———— ae

III. Did the class of children who have lived in a foster

home for "more than one year? certified by the District Court,

satisfy the requirements for class definition, “typicality" and

“representation” of Rule 23, 23(a) (3) and 23(a) (4) of the Federal

Rules of Civil Procedure, considering the enormous difference

between the situations of the class representatives who had spent

at least four ycers in foster care and had no contact with their

parents and absent class members-who were away from their own

homes for much shorter periods of time and had an ongoing

relationship with their parents?

IV. Was due process of law under the Fourteenth Amendment

Cenied to Intervenor-Appellants when the District Court refused

to let their witness testify at the trial on March 5, 1975 and

arbitrarily limited the defenses they could raise?

STATEMENT OF THE CASE

++ ——--- -—— ee +

Plaintiffs in this action are individual foster parents, who,

for a stipend, pursuant to state license and contract*® with a

public child care agency, board children in their homes, and an

~~ 8 °

oY ‘~ tion of such foster parents. They sued on their own behalf

i 1f of individual foster children, defining the claims of

both as arising after e foster child has resided in a foster home

for "a year or more". The foster parents claimed that at the

expiration of that time period they acquired a “protected interest’

under state law and/or a “liberty” interest under the Fourteenth

Amendment of the Constitution entitling them to continue to care

for such foster children.

On that hasis, the foster parents claimed, New York Social

Services Law §§323(2) and 400 and 18 NYCRR 450.10 and the actual

practices of the public child care agencies were unconstitutional,

because they permitted children to be moved o:t of the foster

*The provisions governing licensing of fost: rents in New York

are Social Services Law §§375 through 382; 3 86 and 18 NYCRR

7.5. Copies of standard contracts signed by tintiffs Smith and

Goldberg were introduced in evidence and provided that public child

care agencies had the right to remove foster children from the

foster home at any time.

~4o

homes to be either returned home to their parents or transferred

to another placement without affording foster parents due process.

The foster children were also alleged to posses a "liberty"

interest in their relationship to the foster parents which

similarly entitled the children to notice and a hearing before

| they could he removed from a foster home in which they had

resided for "a year or more".

The challenged Statutes and Requlation apply differently to

foster parents and children. Neither by the terms of New York

Social Services Law §§383(2) and 400 and 18 NYCRR 450.10 nor in

‘

practice, is there any provision ‘for notice and hearing to

foster children. By contrast, the challenged Statutes and

Regulation do provide notice and hearing procedures to foster

parents, both before and after the removal of foster children.*

There is no provision for notice to the child's parents. Thus in

the case of the children, foster parents complained of the absency

of all procedures; in the case of foster parents the procedur

were alleged to be deficient.

Seven children were named as parties to the action. Each.

he spent more than four years in foster care at the time the

action was commenced. Each had been or was in the process of

being the subject of a foster care revicw proceeding pursuant to

Social Services Law §392, in which the foster parents were

permitted to participate. None of the children were visited by

their parents during the preceding year.

The position advanced on behalf of the children in the

foster parents' complaint was subsequently reversed by their

court-appointed counsel, who filed an Answer** denying and

The detailed functioning of these Statutes and Regulation, as

well as of Special Services for Children, Procedure #5, promulgated

by the City of New York, is described in the Jurisdictional

Statements of New York State and City Appellants and here

incorporated by reference.

**Appellants' Joint Appendix "H", p. 69a.

Oppos ing the claims which the foster pal ents had made on the parents "signing a placement form:* thereby legal custody of the

children's behalf. Separate counsel for the children had been children is deemed transferred to the local public child <

are

appointed by Judge Carter, because of the inherent potential official (Commissioner of Social Services) for the duration of

for conflict of interest involved in permitting the foster placement, New York Social Services Law §383(2). The form coes

Th in

parents' counsel to represent the children and because he not mention foster parents. The children named as parties

found that, based upon the pleadings filed, counsel for the this action were all placed voluntarily.

foster parents would not be able to represent the children Five mothers of children voluntarily placed in foste1

ladequately. Judge Carter specifically approved of the filing were permitted to intervene in the action as intervenor-defenc

of a new pleading on the children's behalf.* on August 19, 1974; their children had been or were likely to

Yefendants in the action were New York State, New York City, remain in foster care for one year “or more". The circumstances

and Nassau County officials responsible for the provision of of these mothers and their children were markedly different froin

foster care services to children and families in the State of | that of the Gandy, Serrano and Wallace chiidren. The children

New York and the Executive Director of the Catholic Guardian were in foster care for substantially shorter periods of time,

Society, one of approximately 80 voluntary state-authorizec and their mothers were actively involved both in visiting their

Lo care agencies who,on the basis of a purchase of services children and in efforts to have the children returned to them.

agreement provide foster care services on behalf of the City o% Intervenor-Appellant Neomi Rodriguez, a young blind mot! ’

Ne ae Thais Daz tor never appeared in the action. . voluntarily placed her newborn son, Ec rin, in foster care on

In the State of New York children may be placed in foster March 29, 1973.** She placed her child in foster care becaus¢:

ly as a result of a Court order determining that a of marital difficulties; her husband's violence macs her fearfu}

seieemeaties zbused, neglected, in need of supervision or delinquent, for the safety of her child. Far from abandoning her child,

(New York Family Court Act, Articles 10 and 7) or voluntarily Mrs. Rod@ricuez visited her child whenever permitted to do so by

Lild's parent [New York Social Services Lew, Harlem Dowling Childrens Service -- with whom the

CAUDAL DN s . . .

pare tae ga" of Social Services had placed the child; the child was now

Chi ldr en are vol untarily placed in foster care by the in a foster home. By July 1973, Mrs. Rodriguez h 1d separat Ce

— (me ae from her husband and asked these agencies to return the child

Appellants’ Joint Appendix, "G", pp. 59a, 66a.

to her; they refused because, they said, Mrs. Rodriguez require:

** Hereinafter all referred to as public child care agencies,

Perez v. Sugarman, 499 FP. 2d 761 (2nd Cir. 1974). mobility training and a larger apartment. Mrs. Rodriguez

***Social Services Law Section 3 2, also dealing with voluntary didn't know that she could seek legal help until a relative

ments was not enacted until 1975.

suggested it in April 1974. When she moved to intervene in this

action her child had already been in foster care for 15 months.

* lew York Social Services Law §384(2), 384-a.

**Intervenors". Appendix "4" reproduces the plac: t form she

signed.

Intervenor-Appellant Lillian Collazo placed her newborn child,

James, in foster care 10 months before she joined this action

because she had been erroneously turned down for public assistance

prior to the child's birth and had no apartinent to which she could

bring the child.*

Intervenor-Appellant Mary Robins placed her two boys in

foster care after she was hospitalized with abdominal pains, 7

months before she joined this action. She believed no one else

could help her care for the children while she was in the hospital.

Intervenor~Appellant Dorothy Nelson Shabazz was accused of

leaving her five children unattended and of striking the older one

with a belt. She was told that if she placed her children for

three months no court action would be taken.**

These mothers antondes +, , :

ese mothers contended that the claims of the foster parents

soucht rr _— -21T - 7 rmanit ot M ; ;

ought to impair and diminish their constitutional and state law

riachtc oe o ~ + a yo _ - : .

rights as parents. Parents do not relinquish those rights by

ws ier oF fn! + hi 3 ; °

jvoluntarily pl ng their children in foster care. Boone v. Wymar

-—<- - oun ve ‘

258 F. Supp 14 S E ff 3

F. Supp. 1143 (S.D.N.¥. 1965) aff'a 412 F. 2d 857, cert. denic

396 U.S. 1024; In re Carla L. 357 N.¥.S. 24 987, at 998, 45 A.D

2a 375 (lst Dept. 1974).

ha 4 ~-te 4-1 ~% + Po ay .

The parents, the children and the foster parents were

certificd a 18s repre: ai 4 .

fied as class representatives by order of Carter, J. on

March 22, 1976.***

The voluntary foster care program in the State of New York

a ims ~O vid nro,r - rh . : ° °

to provide temporary substitute care for children whose

parents slead “ah : .

paren are beleaguered by illness, poverty and other misfortune.

It 1s not a method of surrendering children for adoption.

’ . \ . o

When children are placed in foster care, it is expected

that they will return to their parents; foster care

meer ee ee

Se ——

* She Signed a aifte

d tifferent placement forn 2flec S

OD Bac oll tpergs-> = E 1, reflecting the passage of

- vive Aig tga gg tal a; it is annexed as Intervenors'

APP nadine ye SSL §358-a was enacted in 1973 as a way of qualifying

Oluntary placements for federal aid pursuant to 42 U.S.C.A. 608-a.|

aR* Pe c ’ «< ,. . .* .

poeonPaony secured counsel, a neglect proceeding was brought

“gains ic an Was ismisse 7 } ; 4 j

jainst her and was dismissed by the Bronx Family Court.

***Appellants' Joint Appeadix."“E"» bp. 50a.

° egr** ,

agencies are required to work with parents to facilitate the

return. Believing that a child should not remain in temporary

foster care indefinitely, the New York legislature has provided

for periodic court review for each child in foster care.

Originally the first review had to be initiated by the public

child care agencies 24 months after the child was placed in

care; in 1975 this was advanced to 18 months. At the Social

Services Law §392, review the Court determines whether the child

should go home, remain in foster care, Or whether parental

rights should be terminated in another proceeding on the ground

of abandonment (Social Services Law §384(1) (b) or permanent

neglect (Family Court Act, 6611 et seq.).

Foster parents are parties to the Social Services Law §392

review. Foster parents who have cared for a child for two

acquire the right to intervene in all proceedings for custocy

of the child by Social Servic Law Section 383(3).*

The District Court ary thet the foster parents had no

entitlement under state law to the continued care of par-

ticular foster children and declined to reach the question of

whether the foster parents had a fundame mntal “liberty interest

in the continued care of foster children who had been placed

with them for “a year or more". However, the District Court

determined that foster children in the designated class did

have a right cognizable under the Fourteenth Amendment to a

prior “hearing at which all concerned parties may present any

*On the basis ofthesestatutes and the decisions in People ox rel

Scarpetta v. Spence Che pin Adoption Services, 28 N.x. 2d 1585,

321 N.Y.S. 2a 65 (i971); cert . Bn a Noam nom. De Marti:

v. Scarpetta 404 U.S. 805 and Pe le €x Yel Aionymous v.

Saratoga COunty Department _ of Publ Te Welfare 30 A.D. 2a 756

T3rd £ Dept. 1968), Appe >Lla: its S$ argued that SSL 6400 was never

intended to apply when a child was removed to go home but that

SSL §392 did.Compare Matter of W. 77 Mise. 2d 374 355 N.Y.S.

2d 245 (Family Court, New York “Gounty (1974) Matter of Dionisio

R. 366 N.Y.S. 2d 280 (1975), In_re Custody of Mack 3607 N.Y.S.

2d 644 (1975 Z tw

atervenors had urged “the Court to abstain.

pe Pe a

a} ai 7 +}

cnarg 4 W1itTil

rh ~ 4- oe

his Ce AL & LG

- - ;

conaemneda to

ey ft, . ‘ a

ve i a

}

found on th

, 4 ?

entail fol

famili ( j

In t) c

be ac t Cc

to tie hic C

1s to anot! r

+. ) * » _ 4

1 J P

"csc. lut = i

2A ¢ ‘

;

co € i t

. 7 , =

v 7) .

P ,

~~ -

f 4 » |

i eo

4 s ,

’ ‘ YS i . 4

the chi)

4 16

‘ a 49 ‘

In tl

r r P o}

ig O-2 Cl

P| ‘

concer A 1i

t} la) e a r

mhlinp +

puoilc Crild

return of c

= e9r-

. ‘ ia

7 >

Chiidy mn A

decision maker

determining the future placement of the child."

ntif a right to be heard before being

suffer grievous loss" Joint Anti Fascist Comittee

41 U.S. 123, 168 (Frankfurter J., concurring) and

ba of “our c on past" that such a “loss” was

t) chil] en in “the trauma of separation from a

- , 4 _*

ntext, the District Court refused to distinguish

situatior in which a child is being moved back

fh r r parents and those in which the move

foster ft or institution; the Court held that

: t t hearing would perform a

f gat Lt inction. Further, the Court

the f xr children d C ave the capacity

r he ig r iG I tly, a hearing

i ? C i about to be removec from a

h he o she had 3 21 for "a year or more”

the aspect of the statutory scheme

for a h ing both prior to and subsequent to

val, pu nt to Social Services Law §400

“50.10. Plaintiff£ foster parents have not appeal

ARGUM

rgument that follows Appellants-Intervenors,

ildren,voluntarily placed in foster care,are

securing review and reversal of so much of

i Judgment of the district Court as deprives

care agencies of the power to consent to the

ldren to their parents and deprives the parents

Aran ents of New York State, New York City and

ppellant re incorporated by reference.

agencies’ consent. t

necessarily involve the merits of the Order and

whole.

as a

POINT I

THE DISTRICT

ADJUDICATED

RIGHTS OF CHILDREN SINCE THERE

WAS NO CASE OR CONTROVERSY WITH

wren . “+ rae my mun

he ae ee So re 2: + . ate

RESPECT TO THOSE RIGHT AS |

QUIRED BY III, §2 OF T! CON

STITUTION AND FOSTER PARENTS WERE

DISQUALIFIED FROM ASSERTING THE

CHILDREN'S CLAIMS

individual named foster parents both on

that of the foster children in

Carter

The Answer filed on be!

wieser denied seriatim each and every allegation

constitutionality contained in

whether advanced with respect to foster parents

and alleged in Paragraph 8 that the interests of

"would be vitally and adversely affected" by the

the relief prayed for in that complaint.*

the

Thus, the court appointec counsel for

———

*Appeliants’ Joint Appendix "H", p. 70a.

**She did take the position that

foster parents were mandated that

represented at the hear’

the children

igs.

elle

identical claims for both sets of parties. In re

Claim of conflict of interest Let 1 the fost

the children, Helen Buttenwieser, Esq. wa ppoi

However, some of the question

if hearing sought

shou]

a 4

cain

‘cry

- . °

Gs 4

‘ *

i .

oO io nk,

Ss 4

— i-

or chi]

children

procedures sought by the foster parents would be.**

of the right to have the children returned to them with the

;

ine

) & ‘ , —

a/ \

ial t

Jaren,

argued

that while the statutes and regulations challenged by thc

foster parents were not harmful to the children, the hearing

the

| ‘ e ®

. ‘

*n pre sented witnesses

(1974), there was no adverseness at all. As Judge Pollack

, . e — ys . :

. his dissent, “The position of the children taken by the Cour

ce that the children } we 4

‘ t} District espoused only by the foster parents who hav no standing t

( 7 ait re) i 4

c “hy , mn ' « + mY a ~4 ’ , ‘ .

f ient the children's interest."*, citing Ua) 1 States v 1ins,

y “s ~ 9 * "1, EN omens . ~ * 4 ° toe .

i A+ ¥ i »\4e LCs aa . - ——— -

S S = . _

; P . Ohen U.S. 17, 21-22 (1960); Tileston v. Ullman, 381 U.S. 44, 46

cr rC¢ C ‘eel ,cnr ic ou Be. — 2 4

4 as ? | ~- -

c “at ? = 4 ? 4nc ae P ,

Jud > Pollack note 7 4n Ea —— tat Vv. & TG, 4VU2 i - 438, 643-46 (1992); rrow

‘ ace —-— { £4 =>" 4 = c!

7 kar sg ao ~ -

. . JACKSON, 346 ete 249 (1953) for expression of +} =) Ten

-47% tes a question of oe = , tL + A ii her

» > i | 3 . X. . s

me that one person does not have standing tc ccoert he —

= ~ = ey of deciding it “ee a } 10 nave standing to assert the con

iahee ¢ — , Rhia - =~ Bia &

295 U.S. 288 (1936) rights of another. This Court addressed this issue recent

, 4224 VUreve 4UV ) .

Sinaleton °* Wulft re 4 ,

n tl mc litera] 1m oingit . - WULTi, U.S. , 448 U.S Law W

{s3c Le L.Ci.aea - —_——- + ——E —

7 0° . : + 7

‘ ir - ntat : (July ] 19 6). [There the ourt discussed th ratio la ¢

, ‘ rT Lé ‘ Cc LL. , ] - a

7 a} » Mh ay | r 3 | the gene ral rule and also recoanil i mm of exce i ion to the

ed to them. They cial $

The Cc rt‘: i?) lr Or mM } e cle . that ‘ P ~ _ +

c ‘ + a 7h) ein? wa . ae a -iici lL ) ? > G&@ &

ite na } La } }

Ar 8 « 7 1 2 3 ? ,

; a ats : ; : ' cor Slice Ga Ly Jive .) t} ‘ thi I >Y “)T} 1s no a r = & es > t

) oe 2 4 W ; 4

;

: ; vs r t ‘ ; a) . -

, teem @. ial eo n. Here, the c are rt and } been

° il A ° v« \ is | k

rOovU ? ‘ + - . .

‘ Le ¢ ale | Proviacea aliens Li - cc . > 2 10 of ti

— - , eee *

ichildr te j r } } . } 1A 4 s } ,

a ‘ _ ‘ > ante, sc eEN 1d { a _— 1ir

tis iil Oo tne |

f 7 292 -)\ ay C ; ’ } ’ £

. ' “mised — ; |e . t «< \ 744) OL tl . aerad r . f 4 : l Fr roc —_

ic i ¢ t oO qu

) 1} o ry ¥ } b rc

boas * r ‘ ,

4 } j . } LU . f Cc r _ . y

1 a form historical] i wy t ie cla f -

ia ; 4 - - — ™ . .

he Hdicial vro " of the foster parent were severed by the District ¢ tc }

‘ X ‘ E* 4 .

terest of of potential conflict of interest and becau the Court f

c ana if 4 CS i

} t rsed 5 + rT] linge L£ ? » L - = -

nor onlv "De ther i¢ t thé sale : i on th is a At tis ile Ay Cc inf ] LOY «dl rost

’ P ; 4 - ¥ Wwe . . 4 ed ;

could not adequately represent the interest: f tha chiller

+> prec: nta ic of —_ 4 : 4 ss 63% ae lInce¢ ‘ > O14 iweeie Chiat ¢

— — . : ie & ‘ ~~.

: —— Under these circumstances the foster parents cannct hav t

a Y a for 7 11, L } Yr) z * - hua’ .

. ‘ a + ~ ~> & 4 - waa

to assert the children's rights over the opposition of the

children's counsel. The Majority's insistence in its o

" Je. 4 a, . My ‘ M4 3 ;

the disparity between the interests of the children and the

-e Chilerens, 748-90; ; ,

to Families and parents only underscores this fact. The complaint should h:

wervicCes >) Famili 4‘ , G& A k .

been dismissed.

w Joint Appendix "B", p. 27a.

—%™.

** Joint Appendix “E", p 47a.

*** Joint Appendix "G", pp. 62a, 64a.

-13- ¢

IN THE CONTEXT OF THD NEW YORK FOSTER CARE the exercise of many of the activities encompassed within the

(STEM, NO COGNIZABLE LIBERTY INTEREST OF A

Ion

CHILD IS INFRINGED BY THE DECISION OF PUBLIC concept of liberty under the Fourteenth Amendment; they are

CHILD CARE OFFICIALS TO RETURN A CHILD VOL-

UNTARILY PLACED IN FOSTER CARR BACK HOME TO “nersons” but incomplete persons dependent on adults and their

THE CHILD'S PARENTS, MERELY BECAUSE THE CHILD

~~ a Lhe a . + eon 77 er =) D " » VT AY ad »T.” ‘ . , - ~ S| so ce

HAS LIVED IN FOSTER HO! FOR “A YEAR OR MORE,"* rights and interests are not usually independent of the rights

IND THE PPOCEDUPES MANDATED BY THE DISTRICT

COURT WERE UNNECESSARY AND INAPPROPRIATE of their parents. See dissenting opinion of Mr. Justice Burger

of the District Court represents an extension in Goss v. Lopez, Supra, at 590-591. The issue is not fore-

rights of children far beyond any precedent set i closed. The liberty interest of children identified by the

ner inimical to the central attribute of district Court has never been recognized by this Court.

¥y protected parental rights clearly recognize’ Ly b. Return home is not just a "romoval." When agencies agree

custodial richt itself. In holding that a child to return children to their parents, there are parents involved

terest under the Fourteenth Amendment which pro- who want their children ane typically have maintained their

rant aes

we ee

from leaving the "familiar environment" of the relationship with the children through visits®* and other

returning home to his parents, the District Court When a child is returning home from foster care, the experience of

“at is 1 r well sett] that children are "coming home" is inseparable from "removal." Here the special

the meaning of the Fourteenth Amendment whose constitutionally vretected parent~child relationship is involvec,

itled to protection against state abridgement** Stans y_v. Illinoi Sy 405 u.S. 645 (19 72), and the parents

it, 397 U.S. 1 (1967); Tinker v. Des Moines Sciiool | “immediate right to the care, custedy, management and companionsh

at : (1565); Goss v. Lopez 419 U.S. 565 (1975). of....minor children." May _v. Anderson, 345 U.S. §28, 533 (1953),

nox the District Court's statement that comes into play. Thus, it was incorrect for the District Court

not mere chattels"*** dispose of t is case. The ~ to define the rights of children solely in terms of “removal"**.

— a Se ot ie tod , : - ’ : a - - r P P P ° - ee

not esteblish that the liberty of children unce c. A child has no right to refuse to live with his parerts.

Amondment is in all cases the same as that of When the public child care agency returns a child home to his

tor

ire Tinker, supra, especially concurring opinion of parents from a foster home, no liberty interest of a child in

515, with Ginsberg v. New York i} the designated class is implicated. Under our constitutional

‘

Co)

8) ¢ svar Tr “ry Yn ay owe - 4 tal ct <e ° . “ - , + + + .

(1968), and In re Gault, supra, with McKeiver v. system as wel] as under state law the parent makes the critical

ee -- -- - --

403 U.S. 528, (1971). Children are “persons” but | Gecisions affecting a child's life, Meyer v. Nebraska, U.S.

Cf. New York Public Health Law, §2504, as well as rout:

autonomous persons; as children they lack the capa- 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 5),

endent choice and independent action necessary for |

e the District Court drew tl

the line. Brennan 4/9/75 p. 89

**A)lthough Social Services Law 6383(2) and 400 use the term

“romoval" intervenors do not believe the Courts are bound by this

term in its constitutional analysis. Intervenors also claim that

§400 never intended to apply to cases where a ch was being

returned home

~ | BEST COPY AVAILABLE

“ig-

a ALeeneainn facie Ar ne ) ‘ i . aus

1 cussion fogusemn the one year point because *Pranshel 4/8/75, p. 23-24; Edwards T. 118-119; Creech T. 82-84;

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OTHER STATUTES IYNVOLVrp

Unite q S te Crna i tit 7.7.) b sereley a XIV

. 7 7 | 4 *

» » |

ee enor shall any State depriv ’ pe. n «

° * 39 , - .

Lic, ilberty, Or property, without due pre

- LA}

of eae

7 ° o

N« w OF eLeocl1._al he ¥V ces J iw * 383. Care ind

Cu: OUuy of chi icren

me ; _* ® _€ +} . 7 °

he rne parent o 1 chiic remanded or

committed to an authorized eaency hall not

be entitled to the custody +} of except

~~ ~ . >» - . \ , - ‘ ,

upon consent c the court, publi« bas

| » J Lic i rd,

commission, or offic 1 respo } for the

al } pon f th

commitment of such child, or in pursuance of

an oraer of a court or j Wicial offic a ¢*

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com: 1 jJurisdict 1, dete ining that the

-_ 4 Cc r | _ . |

interest of } chil will be pr ted thereb«

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and tnat such parents is fit, competent and

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able to duly maintain,. support and educate

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such child. The nar of such chil shall not

+ - ‘ e . a | =

res by + 1, . - arate °

be cS ‘Ge i ¥ lie aii i? C 2.i.QO «¥ QO! an aut nor i 2é

, ;

and any adult ur rriea person, whe

parent or parents, have cared for a

continuous] x a period o ty 4

more, may apply tc authorized

the placement o aid child th t!

pur} Ff ad lon, and if said c!

eligible for adoption, ¢!} r ‘

é ; worn a

preferer anc irst cor icra )

application over all other «; l t

adoption phar its. However, fin

nination of the propriety of said

of such foster child shall be withi

discreticn of the court, es otherwi

of a-child, for more than twenty-~f¢

through an authorized agency, shall

mitted as a matter of right, as an

party to intervene in any proceed

the custody of the child. Such int

New York Social Services Law §384-a

Transfer of care and custody of chi

1. Method. The care anc

may be transferred by a parent or a

an authorized agency by a written

} i

accordance with the provisions of t

‘4

2. Terms. The instrument shall

such terms, for such time and subie

conditions as may be agreed upon by

thereto. The department may promul

suggested terms and conditions for

in such instrv s, but shall not

that any parti .

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be upon

ct to such

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Jul

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The esent tutwtory } : applicable throughout

t of t! ‘tate, provides that the local public welfare the right to familial privacy. E.g. Meyer v. Nebraska, 262

t r an authorized } \ agency acting on its U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510

b eit” may. in it l4iscretion and on 10 days notice, (1925); Griswold v. Connecticut, 381 U.S. 479 (1965).

order the removal of any foster child from the foster hon Cognizant that each of the Supreme Court decisions in

in which he or she has been } - Social Services Law this area dealt with a more traditional, biological family,

§§ 333(2) and 400. After having been informed of the plaintiffs rely on several recent studies which functionally

impending removal in a printed notice which contains no define the family as a psychological rather than a biological

space for any detailed elucidation of the reasons for that re- unit. Goldstein, Freud and Solnit, BEYOND THE BEST INTERESTS

moval, the foster parents may request a conference with a “public OF THE CHILD. Plaintiffs insist that after one year of

official" of the local social services department at which foster care, emotional attachments have formed which

they have an opportunity to express their dissatisfaction the state should not be at liberty arbitrarily to upset.

with the agencys decision but no formal manner is provided Plaintiffs further assert that the statistical evidence

whereby they may contest it. N.Y.C.R.R.§ 450.14. , as to the length of the average child's stay in foster

Although the foster parents may be accompanied to the care creates an “informal tenure" system raising legitimate

conference by "a representative," they may not present or expectations that meee as foster parents will not

cross-examine witnesses, nor may they inspect the agency be abruptly terminated. Perry v. Sinderman, 408 U.S.

fi even if records contained therein formed the predicate 593 (1972). To illustrate the arbitrary manner in which

for ¢ - trative decision. Yet, despite these hand@i- they claim the outlined statutory provisions can operate,

caps, the burden is upon the foster parents to submit plaintiffs offer the example of their own personal

"reasons why the child should not be removed." The agency, involvement with the foster care system.

by contrast, has no countervailing obligation to provide an Madeline Smith is a 53 year old widow who lives in

erticulated rationale for removine the child. N.Y.C.R.R. East Elmhurst, New York. She became an approved foster

that rarely, if ever, do these pre-removal conferences Society of New York in 1969. On February 1, 1970, she took

result in the reversal of the initial decision. Post- Eric and Danielle Gandy into her home as foster children.

removal, the foster parents are entitled to a “fair hearing,” At the time, Eric was four and Danielle, two. Plaintiffs

Social Services Law § 400(2), and the, if still "aggrieved" Claim, and defendants do not dispute, that Danielle has

he agency action, they may obtain judicial review. never seen her natural mother and Eric no longer remembers

Plaintiffs contend that these procedures deprive them her. Both children, who are legally free for adoption

of “liberty and property” interests without due process consider Mrs. Smith to be their mother.

of law. The specific liberty interest which they assert is Nevertheless, on March 29, 1974, Mrs. Smith Ss noti-

fied by letter from the Catholic Guardian Socic chat

. Eric and Danielle were to be removed from her ce): because

~44-

“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 Eric 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 Childrens

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, Cynthia 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 returned to their biological mother while

Cynthia and Cathleen were to be transferred to another

foster home.

| 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 imnediate 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

We agree. As a statutorily ordained court we must limit our

inquiry to a determination of whether plaintiffs have

established a deprivation of life, liberty or property suffi-

cient to invoke the protections of the Due Process Clause.

o4Pa

: a ’ intimate contact, which best explains the family's pre-

We find no merit in plaintiffs' argument that the

: eminent constitutional position. Plaintiff foster parents

realities of the foster care system, as presently administered

further insist that their relationship with their foster

in New York State, justify their expectation that their role

children fully satisfies this functional definition, although

as foster parents will not be abruptly and summarily

custody of the child is vested in the authorized agency.

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

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

(1972). The most obvious and formidable obstacle to

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

plaintiffs' contention is the agreement that each of them .

claim, indicate the Supreme Court's willingness to look

signed upon assuming responsibility for their respective

behind legal formalities when inquiring into the existence

foster children. The contract employed by the Catholic 3/

: ; of a fruitful family life.

Guardian Society, typical of those used throughout the state,

While the intervenors and defendants rely on precisely

reserves to the agency the right to recall the child “upon

’ the same Supreme Court opinions, they emphasize that the

request, realizing that such request will only be made for

; holding of each was limited by its facts to biological

good reason." While such a provision is not dispositive,

; families. Intervenors, in particular, strongly protest any

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

, ’ ; implication that the contractual relationship between

authority which it vests in the agency is on its face

; ; PRA foster parent and foster child is, or even can be, the

incompatible with plaintiffs' claim of legal entitlement.

ir equivalent of the relationship between a mother and the

We are unpersvaded by plaintiffs’ efforts to equate an open- 10/

; ; child to whom she has given birth. Invervenors have

ended relationship with one of indefinite duration. Nor

; : introduced affidavits from eminent experts in social work

does evidence showing that the average child placed in

P tao and psychology which attack the validity of the concept

foster care remains within the system for approximately 1l/

7/ of the “psychological family." The intervenors also argue

4-1/2 years support the plaintiffs' position. Cf. Perry v. ,

that this court would be ill-a@vised to create a precedent which

Sinderman, supra.

might later be applied to other foster families less

We fined consicerably more difficvlt plaintiffs’

; concerned and well-intentioned than those now before us.

assertion that the foster home is entitled to the same

We agree with the parties that this debate as to the

constitutional deference as that long granted to the more

ee SS definition of the family and the role in society is an

traditional biological family . Plaintiffs base their

: ; interesting and impo: “ant one. We need not and shouid not,

contention upon several recent studies which conclude that

: ee ’ however, reach out to decide such novel questions when

the "family" can best be conceived as a psychological entit ,

; ; ; narrower grounds exist to support our decision. See

niquely characterized by the emotional interdependence of

, ; Ashwander v. Tennessee Valley Authority, 297 U.S. 233, 341

each of its members. E.g. Goldstein, Freud and Solnit, :

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

BEYOND THE ECST INTERESTS OF THE CHILD. Plaintiffs argue

that it is this interdependence, born out of daily and

-49-

-48-

We believe that the pre-removal procedures presently em-

ployed by the state are constitutionally defective. We hold

that before a foster child can be peremptorily transferred 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 hearing at which all con-

cerned parties may present any relevant information to the ad-

ministrative decision-maker charged with determining the future

While our decision today is perforce

limited to the class as defined in Judge Carter's accompanying

certification order, namely all children in foster care for one

year or longer, we note that similar interests ous est a similar

result whenever the child is placed in a foster home for long

12/

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 institutionalizing children with the

poor and feeble-minded or boarding them out as apprentices or

indentured servants. In any event, it is by now well-settled

that children are “persons” within the meaning of the Fourteenth

Amenament whose rights are entitled to protection against state

abridgerent. 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 “con-

demned to suffer grievous loss,” Joint Anti-Fascist Committee v.

McGrath, 341 U.S. 123, 168 (1951) (Frankfurther, J., concurring).

The basis of this sight ‘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 harmful

consequences of a precipitous and perhaps improvident

decision to remove a child from his foster family are

apparent. Plaintiffs' experts assert that continuity of

to 2.

personal relationships is indispensable to a child's well adju

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,

relying principally on a longitudinal study conducted by

Professor David Fanshell of the Columbia University School of

Social Work in which he concluded that there was no statisti-

cally significant correlation between a child's successful

development and the number of times that child was moved

within the foster care system. We find significant, however,

Prof. Fanshell's further testimony that, “as a professional,

(I) would be against the capricious movement of children."

The requirement of a hearing is designed to insure no more.

Most specifically, a hearing is not, as intervenors

apparently 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 abandonment,

formal surrender for adoption or demonstrated unfitness, the

"primacy of parental rights may not be ignored.” People ex

rel. Kropp v. Shepsky, 305 N.¥. 465, 469 (1953); see also,

Spence Chapin Adoption Service v. Polk, supra. We do not,

13/

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.

Even under such circumstances, a hearing performs the

salutary function of providing the agency with an organized ~

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 biological

parent has failed for more than a year to maintain "sub-

stantial 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 (Pam. Ct, N.Y. CO. 1972). A fortiori, when the

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

foster home to ancther, 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 at 265.

Plainly, the present pre-removal conference is not

designed 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

procedural 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 d fen? Ss seriously

to claim otherwise.

Rather, the state argues that any constitutional defect

is remedied by the post-removal] “fair hearing" provided uncer

N.Y¥Y.C.R.R. € 450.14. We disagree. See Sniadach v. Farily

Finance Corp., 395 U.S. 337 (1969); Fuantes v. 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 un-

persuaded 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 eradicate 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

13a/

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 incorporating

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

elt.

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

he be placed for adeption with specified individuals.

i }

Intervenors' contend that the above procedure, when

coupled with the continued jurisdiction of the Family Court,

Social Services Law § 392(10), fully satisfies constitutional

requirements. We do not agree. Cf. Boone v. Wyman, 295

F.Supp. 1143 (S.D.N.¥. 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

whatsoever 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. 24 245, 248 (Pam. Ct. N.Y. Co.

1974), the court concluded that the power to direct the child

to be continued in foster care did not emcompass 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 indicated

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

correct 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

involvement and perhaps a financial abieiai eeu 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

15/

depend upon the initiative of third persons. _

A similar flaw taints the amended regulations promulgated

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 con-

ference and post-removal hearing envisaged 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 supple-

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

review" 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 stipulated 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 remove

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

improverent over previous procedures, we note certain

Geficioencies still present in New York City's current

practices. 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 applica-

bility whatsoever when the child is to be returned to his

biological parents. We see no basis for this distinction

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, a well informed

decision cannot but help to promote the child's “best

interests,” which all parties seek to advance.

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 abroaate.

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

servea by a speedy anda 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 informa-

tion 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 articulate the

interests of the child. In making this determination, the

agency should carefully consider the child's age, sophistica-

tion and ability effectively to communicate his own true

feelings.

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

sentative be an attorney. “The insertion of counsel...

would inevitably give the proceeding a more adversary

cast,” 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 ;

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

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

tionally requisite. See Morrisey 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 development. Rather, we

believe the sounder course is to allow 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 condlude that New York Social

Service Law §§ 382(2) and 400, and N.Y.C.R.R. § 450.14, as.

presently operated, unduly infringe the constitutional

rights of foster children. Defendants are enjoined 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 accord 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

United States Circuit Judge

ROBERT L. CARTER

United States District Judge

-57-

FOOTNOTES

1/pursuant to the provisions of 28 U.S.C. §2281, this

three judge court was convened to consider plaintiffs’ non-

frivolous constitutional claims.

2 ve , cane

2/ tn recognition of the independent position advanced

by Mrs. Buttenwieser, the term “plaintiff" will be used through-

out this opinion to refer only to OFFER and the foster parents

althouch the foster children were also named in the complaint.

2a/y), a separate order, filed concurrently with this

opinion, Judge Carter has granted this motion of both plain-

tiffs and intervenors 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 con-

tinuously 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.

4/nxuthorized agency is defined in New York Social Serv-

ices Law § 371 (10). It includes 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

voluntary child-care agency under the supervision of th New

York State Board of Social Welfare, such as the defendant

Catholic Guardian Society of New York.

7/19 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 who testified on the basis of his own longitudinal

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, conducted over a

five year period, revealed a decline in discharge rate, as

follows:

First year ------- 24%

Second year ------ 13%

Third year ------- 8%

Pourth year ------ 9%

Fifth year ------~ 7%

™ 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.

8/ “The Court has frequently emphasized the

importance of the family. The right to conceive

and to raise one's children 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

‘(r)ights 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 resice first in parents, whose

primary function and freedom include preparation

for obligations the state can neither supply nor

hinder.’ Prince v. Massachusetts, 321 U.S. 158,

166 (1944). The integrity of the family unit has

-~}

Illi

the

found protection in the Due Process Clause

“parla” pont ° ‘

our te th A t, Meyer v. yrraska, S$

399, the Fqual Protection Clause of

Oy Vy : . = 0% +

Amendment, Skinner v. Oklahoma, supra, at

the Ninth Amendment Griswold v. Connectic

U.S. 479, 496 (1965 g, J., concur

Stanley v. Illinois, 405 U.S. 645, 651 (19

9/ ,

~In Stanley, the Supreme Court invalidate

nois Law which made the children of unwed

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

of the

upra, at

the Fourteenth

, 3281

ring).

72).

ad a provision

fathers wards

sent a hearing, the state was prohibited from presuming that

e fat

her would be an unfit parent merely because he had never

marricd.

10/

—~— The defendant Catholic Guardian Society

currently pays

1d boarded in

ing, medical

from similarly

of the

foster parents $155 per month for each foster chi

their home, in addition to an allowance for cloth

ana dental expenses. This amount is typical of that paid

throuchout the state.

ll/ Plaintiffs have introduced affidavits

eminent experts equally fervent in their support

concept of the “psychological family."

iii

-60-

lla/

Judge Pollack concludes his dissenting opinion

J 5 Of

with the observation 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 incorrect. An examination

of § 383(3) plainly reveals that while it grants to foster

parents the right to intervene in any “proceeding” 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 practices of the defendants. Further-

more, 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 relationship being terminated.

iii -a

— 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.

23/ secordingly, 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.

13a/ ,

——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. Eldridge, 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

piaintiff 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 procedure for gathering and eval-

uating such data, thereby minimizing the risk of error.

14/ See note 10, supra.

15/ ; :

—' It is for this reason that we are unable to agree

with intervenors' assertion that a constitutionally adequate

recourse is provided the foster parents through a petition for

habeas corpus or a petition for custody under Famtly 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. :

‘State Department of Social Services, and JOSEPH

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT CF NCW YORK

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 frienc of RAFAEL SERRANO;

and GEORGE and DOROTHY LHOTAN, on their own be-

half and as next friend of CHERYL, PATRICIA,

CYNTHIA and CATHLEEN WALLACE, on behalf of them-

selves and all others similarly situated,

Plaintiffs,

NOTICE

APPEAL

-against-

JAMES DUMPSON, individually and as Administrator

of the NEW YORK CITY HUMAN RESOURCES ADNINISTRA-

TION; ELIZABETH BEINE, individuaily and as

Director of the NEW YORK CITY BUREAU OF CHILD

WELFARE, and as Acting Assistant Administrator

of NEW YORK CITY SPECIAL SERVICES FOR CHILDPEN;

ADOLIN DALL, individually and as Director of the

DIVISION OF INTERAGENCY PELATIONSHIPS 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,

in@ividvally and as Commissioner of the New York

74 Civ.2010

D'ELIA, individually and as Commissioner of the

lassau County Department of Social Services,

Defendants,

NAOMI RODRIGUEZ; ROSA DIAZ; M\RY ROBINS; DOROTHY

NELSON SHABAZZ; and LILLIAN COLLAZO, on behalf of

themselves and all others similarly situated,

Intervenor-

Defendants

— << ae oe ee ee ee ee ee ee ee et ee ee ee ee ee ee Oe ee me Oe ee ee ee ee ee ee ee eee

SE 00 00 C0 00 08 co 00 06 08 80 00 86 80 00 08 08 C0 08 88 08 G0 08 08 OME 00

NOTICE OF 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 themselves and all others

similarly situated, appeal to the Supreme Court of the United

States from the judgment 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

@6 24

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

propriety of the p

This appeal i

Dated: New York,

June 10, 1

Louise Gruner Gans

of Counsel

prior hearing with respect to the

roposed move.

s taken pursuant to 28 U.S.C. Section 1253.

New York

976

Whe irs LEVY AN

“MARE TIE L. THOMPSON /

Attorney for Intervenor-

Defendants

Community Action for Legal

Services, Inc. '

335 Broadway

New York, N

ew York 10013

* (212) 966-66

-64-

TO:

Marcia Robinson Lowry, Esq.

Attorney for Plaintiff

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

Helen Buttenwieser, 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

Elliot Hoffman, 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

STATE OF NEW YORK )

) ss.: .

COUNTY OF NEW YORK)

JERRY M. SAUNDERS, being duly sworn, deposes and says:

deponent is not a party to the action is over 18 years of

age and resides at 15.Port Washington Avenuc, New York,

Hew York.

That on the 10th day of June , 1976 I served the within

Notice of Appeal upon:

Marcia Robinson Lowry, Esq.

- Attorney for Plaintiffs

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011.

Helen Buttenwieser, Esq.

Attorney for Children

575 Madison Avenue

New York, New York 10022

Maria Marcus, Esc.

Office of the AttorneyGeneral

2 World Trade Centcr

New York, New York 10047

Flliot Hoffman, Esa.

Assistant Corporation Counsel

Municipal sviliding :

New York, New York 10007 r

James Gallagher

Office of the County Attorney

of Nessau County

Nassau County Executive Building

West Street ,

Mineola, New York 11501

Said service was made by depositing a true copy of

seme enclosed in a post-paid properly addressed wrapper in a

post office under the exclusive care and custody of the

United Stetes Postal Service within the State of New York.

Sworn to before me ta

10th day of June, 197% SL.

—_———

‘ - ama M. SAUNDERS

y i?

4 J: 4. a4, f.

$revArt A DICCNNOR

filet P.tdse, Sota of "ww Tere

bio N-40/09

Cresilfied rv. Rienw Yrws Souls

Crevrena Levee Menh f

NOTICE OF ENTAY

Sir:- Please take notice that the withia is « (certified)

true copy of a

duly entered in the office of the clerk of the within

named coust oa 19

Dated,

Yours, etc.,

Atiornsey for

Office and Post Ojfice Address

Autorney(s) for

ss MOTICZC OF GETYILENMENT oS

Sic: —Ticase take notice that an order

of which the within is a wue copy will be presented

for settlement to the Hon.

one of the judges of the within named Court, at

on the day of 19

at M ‘

Dated,

Yours, etc,

Attorney for

Ojsice and Post Ojjica Address

;

Index No. Civ. 2010 Yesr 1974

UNITED. STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

. ORGANIZATION OF FOSTER FAMILIES

FOR EQUALITY AND REFOR‘; et al. .

Plaintiffs,

-~against-

JAMES DUMPSON, individually and

as Administrator of the New York

City Human Resources Administra= .

tion, et al.

Defendants

Naomi Rodriguez, et al.

Intervenor Defendants :

aos ———

NOTICE OF APPEAL

MARTTIE L. TiO! “PD SON

Louise Gruner Gans

Auwrny feIntervenor Defendants

Office and Post Office Address, Telephone

Community Action for Legal Svcs.

335 Broadway

New York, New York 10013

(212) Tel. 966-6600

Attorncy(s) for

Service of a copy of the within

is hereby admitted.

Dated,

THE CITY OF NEW YORK

DEPARTMENT OF SOCIAL SERVICES

BUREAU OF CHILD WELFARE

BRONX OFFICE

192 EAST 151ST STREE

BRONX, N.Y. 10451

AUTHORIZATION FOR PLACEMENT OF CHILD(REN) IN FOSTER CARE

Case No. _ 3109L78

purpose of de

-limedical or si

any authori 2¢

or children's

Commissioner

accordance

Law of the St

their judgment

while in an ua

Law o f the Sta

months or more

Commissioner of

duly authorize

I speci

society for ‘

actic } on my r

necessary ay

4 4

ifical nse

before named or any of them, while

; ‘

children to give

or vaccination

. This is to certify that I, Edwin & Naomi Ff Rodriguez _

residing: at 1030 Nelson Ave. Bronx ma

am t _parents _ of

relationship

Name _- Edwin Rox riguez Age b. 2/6/73

and that I authorize the Commissioner of Social Services of The

City of New York or his duly authorized representatives to place

the said child or children in any duly authorized agency as

defined in the Social Services Law of the State of New York.

nt that if the child or

receiving care

or prevention of cruelty to

surgical or medical treatment,

ind medical treatment may be administered under

the authorities of the saic authorized agency or

prevention of cruelty to children without further

t, and that such tests or examination as they deem

said child or children for the

he need of the said child or children for

cal care. I Further authorize the authorities of

society for the prevention of cruelty to

hild or children any treatment, inoculation

— )

—J

—

“

sucn

for immuniation against contagious diseases as in

2>alth.

ay be necessary for the protection of such child's

st visit the child or children hereinbefore named

zed agency, as defined in the Social Services

of New York, for a period of twelve successive

i do not furnish a reason satisfactory to the

Social Services of The City of New York or his

representatives for my failure to do so, the

Social Services of The City of New York, in

the authority vested in him by the Social Services

of New York, the Administrative Code of The City

-o8-

of New York, and the Domestic

~ rg Bn rae non gy to and may y if in his judgment it shall be for

interest of the child or children hereinbefore named s ;

to do, place out through a duly peopl enn agency the child c =

children named above in a free family hom with ¢ view t dias

subsequent adoption. ™ seats

Relations Law of the State of New

In witness whereof,

I hereunto set m and is

nan . 9s y hand this 29

day of

Signed in the presence of Edwin Rodriguez

—_—_—— SL

Signature of Parent o1

Guardian

(Naomi Rodriguez signs with

an "X".)

Department of Social Services

Representative

INTERVENORS' APPENDIX _ ’

THE CITY OF NEW YORK

HUMAN RESOURCES ADMINISTRATION

SPECIAL SERVICES FOR CHILDREN

AUTHORIZATION TO PLACE CHILD IN FOSTER CARE

(Prepare in Quadruplicate)

Case No. (Illegible)

I (We) Lillian Collazo , residing at

(Illegible) (Illegible) Brooklyn N.Y. (Illegible

House No. and Street Apt. No. or C/O Borough or P.O. zip

am (are) the (mother) (father) (legal guardian) of the child

James Morales born on 12/12/73 and I (we) authorize the

Commissioner of Social Services of the City of New York to place

the child in a duly authorized agency as defined in the Social

Services Law of the State of New York. I (We) understand that the

Commissioner will inform me (us)of the agency with which the chile

is placed. I (We) also understand it is my (evr) responsibility

to keep that agency informed of my (eur) whereabouts and my (our)

plans to resume caring for the child and of any delays which make

continuation of placement necessary.

Placement is required because I (we) am (are) unable to

make adequate provision for the support, maintenance and super-

vision of the child in his (her) own home or with relatives or

friends.

I (We) anticipate placement will be required for no longer

than .l.month... week(s) month(s). I (We) understand that when

the reason for placement no longer exists, I (we) should esk for

the child's return and that the Commissioner will return the

child, provided that the Commissioner is satisfied that I (we)

am (are) able to care for the child. In placing the child unuer

the Commissioner's care, I (we) consent to the administration of

such immunization, tests and treatments, including dental and

surgical treatment, as are considered necessary for the well-being

of the child. I (We) understand that I (we) will be consulted,

if possible, whenever surgery is necessary. However, in the event

that the child requires emergency surgery or treatment, I (we)

authorize the Commissioner to consent to such emergency surgery Or

treatment if, for any reason, I (we) cannot be consulted. I (We)

have been further informed and understand that:

1. I (We) and the agency with which the child is placed

are expected to work cooperatively in planning for the child and

that the agency will offer me (us) whatever help is available to

enable me (us) to decide what is best for the child. While the

child is in placement, it is my (eur) right and responsibility

to visit the child regularly and to actively participate in

planning until the child can have the benefit of a permanent home,

either with me (us) or in an alternative setting.

2. Under the laws of the State of New York if, for a period

of six successive months, I (we) do not keep in contact with the

child, my (evr) failure to do so may be considered abandonment. In

addition, if, for a period of one year, I (we) have not made

efforts to plan for the child, my (our) failure to do so may be

considered permanent neglect under the law. If either of the

foregoing should occur, Court action may be taken to terminate

my (eur) parental rights.

-70-

3. Pursuant to the provisions of Section 358a of the

Social Services Law, a proceeding may be initiated in the Family

Court to obtain Court approval of this instrument and the transfer

of the care and custody of the child to the Commissioner of Social

Services of the City of New York. In connection with such pro-

ceedings, I (we) do hereby consent to the jurisdiction of the

Family Court over such proceedings.

4. I (We) waive notice of any such proceeding and service

of the petition on me (us) as well as a hearing thereon. I (2)

consent that the Family Court Judge's determination be made based

solely upon the petition and other papers, if any, that are Sub=

mitted to the Court, and to the entry of an order approving this

instrument and the transfer of care and custody of the child to the

Commissioner of Social Services of the City of New York, based upon

said determination.

Dated this (Illeg.) day of January, 19 24 °

Signed in the presence of Lillian Collazo

Signature of Parent or Guardian

(Illegible)

Department of Social Services

Representative

Signature of Parent or Guardian

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.