# Jurisdictional Statement — Blackburn v. McKenzie > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1638%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1977 - **Citation:** 430 U.S. 958 ## Text - 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 I 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 a 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) 10 1l 14 28 31 32 INTERVENORS ' INTERVENORS ' INTERVENORS INTERVENORS ' INTERVENORS ' APPENDIX APPENDIX APPENDIX a 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 ii 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 31 19,24 12 12 31 13 16 17 26 16 10,19 30 . 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 ’ : ? a 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 15 19 31] 12 30 15 16 21 32 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 - >) 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 “ —_— . _ ¥ y ‘ Yedsed « = ni ee ‘ ’ 4 ’ , Ole Geese eeeee “eee Tr le e r T ’ 524 F 2d ‘ / 1¢ ’ \ 4 4 Beeeeeeveveenee eee? “eeee - . * 4 . ‘ c s Tilest« } > = l 44, 46 (1 3). Tin 7 ~ - 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 c 47 () ~~ 4 ’ 4 "% + a | “ee ** ee#eeee J ec 1 5 | sx 0 c t= 2¢ a7 A Wolff \ icDonnell, 418 l 539 (1974)..-. Unit State Constitutic > 4 - a Articie I + S 2 “eevee “eee *-* eoeevevee eee ee Fourteecnt New cccceces WTTTI Titi r ? . +o . 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 ** . e * 28 4 : Le 3 1343(4 “ener eve eeeeoeveveen ee *“* 28 U.S ce 990 VUedewe ZaU hbo ocooeveeeeveeenon eee 00 e0" *-. iv Page 24 29 13 19 24 17,27 15,18,19,24 24 30 13 14 13 31 19 3,11,12 3,4,14,17,29, 31 42 U.S.C. 5 42 U.S.C.A. § 42 U.S.C.A. § Federal Rules Federal Pules Rule Federal Rules Rule State OB. Demekee F N.Y¥.F.C.A. zy N.Y¥.F.C.A. § N.Y.F.C.A. § N.Y.F.C.A. § N.Y.F.C.A. § N.Y.F.C.A. N.Y.F.C.A. N.Y.P.H.L. § N.Y.S.S.L. § N.Y.S.S.L. § N.Y.S5.S.L. § N.Y.S.S.L. § N.Y.S.S.L. § N.Y¥.S.S.L. § N.Y.S.S.L. § N.¥.S.S.L. § Statute: 1397-(3) we cceecces of Civil SR ia) (9) .cccccccceseaqeece of Civil Ya TP URS ) Perea ’ LID LLL. ccccvcvees . i s 4 oc and Regulations: Article Pueobeceeeces Article 10..cccccecces >, rrr, rrityt i BBliccccccceeseces Procedure “eee eene “eee “en ene . “eee ef “ee ** **f Procedure, Rule 23.. Procedure, “ene ener “ee . Cc, “eee *eeevee? “ene enee “ee ** “ee ee “ee eee “eee “ee . “eee “eee “ene eee *oe#eeevevreeeneenneee oe#reeevneaenee “ee “ere “ene ee . “en ee “*#eenenenee “ne eee “ene ee *“eernreneevee *-* “ee . “ee *-*f “ee eoevneenee “ee Page Q = 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 ’ «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 P 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. eS 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 ‘ * 4 , i . oO io nk, Ss 4 — i- or chi] children procedures sought by the foster parents would be.** L DY of the right to have the children returned to them with the ; a ine L 2 ) & ‘ , — 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 * j 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 « prec: nta ic of —_ 4 : 4 ss 63% ae lInce¢ ‘ > O14 iweeie Chiat ¢ — — . : ie & ‘ ~~. k : —— 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- ¢ ry 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 " fy 7+ ct ~ r? ‘ Co) . U . in 8) ¢ svar Tr “ry Yn ay owe - 4 tal ct ; . _ = - . 4 . - . ,) ‘ 2 : - 4 t . _ ) . ; . . 4 4 . . ; 4 ‘ q J . + ~ “a 4 > + - - * . 4 ‘ ° > = | - ) ds ~ ° -~(? . *- ‘ : , ° > ‘ > s . 4 4 > : 4 > . . . ’ _ . ‘ ‘ oo ¥ -” . - - 7 . . & a : . _ ~~ > _ ) ‘ . ‘ ° _ - ‘ _ . = ‘ ry . 5 - ‘ ‘ 4 . 4 4 ‘ . ‘ d 4 —~ Nm we ! P \ + 4 ~ - ~ . ~ ‘ 4 ; 4 cr 5 : u ~ | \ - - r : P . “2 i * ‘ 4 ~ ~ c , 4 -/ . > - 4 - > . 4 2 -4 - ‘ é J . re i n . - > 4 ’ ~ . LY - 4 —" ‘ os + “ : ) . 4 + \ ? 6 ' > ‘ . ° = ae 4 _ «4 * ae | . ' . w - vo J V4 a — ¢ +- . - - . = . * “ . + nm $ " . “ ’ - c } * . - , J ~ oa . ~ ~ - , ‘ 4 d J t +/ J - - pa i - - . { r . + = ° » > ' ‘ 4 ~- rs d > co - C4 , - 2 ; - ‘ ; - £ bd j ‘ > 4 4 } - / - - . ~ sa *. . > = + et - nae . ’ ; on - J _ . heal t +/ : —— Sa ———ee a = ——— Sy —_ - * J = 4 > > ° - ‘ | ' “ . e- . > - c . ‘ - 4 . , : : 4 { L c + . , > “ | - 4 } ‘ " ' U i C 7 3 ‘ 4 > \ > . how . ‘ : 4 2 4 E 4 . 4 w~ ‘ ‘ . al | - . , ~ ~ ‘ @! 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"4 ° ‘ ; \ 7 = . . wy ‘ , “ ~ 4 _ . r ‘ s . 4 4 ° ~ ; N , ~ . ~* 4 t . ~ ‘ . 4 - wa - » x ee ‘ , ? - = an i to , se a ; a . I — We a 4% Cri 7 i! = Sy lap! . now , 4 a : { . —» - . \ , - ‘ , 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 ¢* . - , of . ia : . com: 1 jJurisdict 1, dete ining that the -_ 4 Cc r | _ . | interest of } chil will be pr ted thereb« > + © 4 ~ = e ‘ and tnat such parents is fit, competent and «, % , e able to duly maintain,. support and educate . 7 rm? - . ™ 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 } 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 . A cenit , ¢ ¥ s¢ : ; i CLO ‘ ) x fc —- L det _ Smt Optio nm the sole cea nNrowi-: ? S ITOVI 4 u IS Care > mans uz nths, + , — ~/% r interested q involving ez ae ® | ii be upon ct to such he parties - . , ~ - . ° 2 “ =) a - - “ ~ ‘ ed - a Ww & J od 4U Hs OG WY . . . - . ~ . = — ————_— —— > —— —— === + . = 77 ao | ~~ , a " 5 i 4 ~ 4 ' r ° 4 4 } . 4 ; _ , — » a rt = a _ Y | } + > + — ° ’ — - ~ w@ 4 : e - . 4 ony : - i j . - ; ‘ - 4 . J v7 & > os oe 444i om : = r ~ ° 2 a . , . — t , hs U ‘ oe yy ™ » ming £ a Ss UO Ww in a we YH ~~ UW YU ») es @ ‘ f ' ° . 4 . = U + 3 4 6 - r" Jul four N 6S eee es = S| co .: te | The esent tutwtory } : applicable throughout 3/ 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 6/ © 450.14 There is evidence in the record which indicates parent under the supervision of the Catholic Guardian 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 4 ~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. 10 talth. 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- rw 4 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 X (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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1638%3A1. Public record. Not legal advice.