Opposition Brief — Rodriguez v. McLoughlin

No. 00-1314

In The

Supreme Court of the United States . OFFICE OF TH CLERK

PILED

SYLVIA RODRIGUEZ, individually and on babalt of her

minor child, LES ANDREW KELLY,

Petitioners,

-against-

MARJORIE McLOUGHLIN, individually and as

Executive Myector Cardinal McCloskey Children’s &

Family Services, and BARBARA McMURRAY,

individually and as Foster Boarding Home Director of

Cardinal McCloskey Children’s & Family Services, and

CARDINAL McCLOSKEY CHILDREN’S AND

FAMILY SERVICES, et al.,

Respondents,

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

MUNICIPAL RESPONDENTS’ BRIEF IN

OPPOSITION

JEFFREY D. FRIEDLANDER,

First Assistant Corporation

Counsel of the City of New York,

LEONARD J. KOERNER,

Counsel of Record,

100 Church Street,

New York, New York 10007.

(212) 788-1010 or 1031

KRISTIN M. HELMERS,

ALAN G. KRAMS,

of Counsel.

Dated: April 26, 2001

QUESTIONS PRESENTED

1. Does the Due Process Clause create a liberty

interest in family integrity for a pre-adoptive foster

family of unrelated individuals where the family was

created, licensed, and funded by the government,

and the government and its contract agency retained

legal guardianship and custody until the child was

adopted?

2. Does New York law create a liberty interest in

family integrity for a pre-adoptive foster family of

unrelated individuals where _ tthe _ statutes,

regulations, and contract governing the relationship

all make it evident that the child is in the legal

custody and guardianship of the government and its

contractor child-care agency, and the child may be

removed from the home at any time prior to adoption

if the legally responsible agencies consider removal to

be in the best interests of the child?

TABLE OF CONTENTS

Page

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REASONS WHY THE WRIT SHOULD BE DENIED

I. It Is Already Established that the Due Process

Clause Does Not Create a Protected Liberty

Interest in Family Integrity for Foster Families

Composed of Unrelated Individuals Brought

Together by a Government Agency that Retains

Legal Custody and Guardianship of the Child. ... 6

II. New York Law Does Not Create a

Constitutionally Protected Liberty Interest in

Family Integrity for Pre-Adoptive Foster Parents

and Children. Until a Child Is Adopted, the

Responsible Government Agency and Its Contract

Agencies May Remove Any Child from His Foster

Home Whenever a Removal Is in the Child’s Best

Interests, a Broad, Subjective Standard that

Affords Substantial Discretion to the Agencies

with Legal Responsibility for the Child. ............ 13

SPRINT kcinssannnadbacsnen cunnnunsvnaananthsdburnieabune 24

TABLE OF AUTHORITIES

CASES

Backlund v. Barnhart,

778 F.2d 1386 (9th Cir. 1985) ....0.00 ccs. 11

Berhow v. Crow,

423 So. 2d 371 (Fla Dist. Ct. App. 1982)........ 11,12

Brown v. County of San Joaquin,

601 F. Supp. 653 (E.D. Cal. 1985)........... Ra 3 oe

In re Dina Michelle S.,

653 N.Y.S.2d 677 (App. Div. 1997) ...................00. 16

Drummond v. Fulton County

Dep’t of Family & Children’s Servs.,

963 F.2d 1200, 1208 (Sth Cir. 1977) ..........0....0... 22

Eschbach v. Eschbach,

SIP Tee RE TEE. Fe NOIRE icivcccacandoseasonckssosanicoes 19

Frederwitzer v. Friederwitzer,

ae Pe EE GE. Fc WINE keto ix ncch ce cnensuaccctscceveate 19

In re Hasani B.,

600 N.Y.S.2d 694 (App. Div. 1993) .......... 17, 18, 20

James v. McLinden,

341 F. Supp. 1233 (D. Conn. 1969)............... a: Se

Kentucky Department of Corrections v. Thompson,

A See. Oe I i aiss cas icabeiiiingacieiesercgemmavecosiouse as 6

Lehr v. Robertson,

PE Ast A CE IIE cain dg cecneae nie sdoundinccenoabarcuesas 10, 11

Louise E.S. v. W. Stephen S.,

gh 8 kB 8 he) |. Pee 19

-iii-

McLaughlin v. Pernsley,

693 F. Supp. 318 (E.D. Pa. 1988),

affd, 876 F.2d 308 (3d Cir. 1989)................. 20, 21

Meachum uv. Fano,

SE Us ES URW TOON «tik sctatdesdssasnancciqertarnegendekiances 14

Moore v. City of East Cleveland,

ROS UG St cid orcas momen 9,10

Olim v. Wakinekona,

REE TFB ee Ui a ike dsentlatsssctevepecbiinsnausiioons 21

Pierce v. Society of the Sisters

of the Holy Names of Jesus and Mary,

DONE EU RRP CI in evccelicsviencnctotaisnaaiivenaias 10, 11

Reno v. Flores,

EE S10. eC PII tos dese ssnenxtnecceversniontatestsinnsn 9, 22

Smith v. Organization of Foster Families for Equality

and Reform,

BSE Te TE EET kadenicnixesremmmsoenonimsisitis passim

Spence-Chapin Adoption Serv. v. Polk,

BT i OE Rc REED csticnczncrssincssiisedns 16, 18

Spielman v. Hildebrand,

iS FA EET COU Ge. LI orrkvcscccscrastigatsioisss 22

Thelan v. Catholic Soc. Servs., .

691 F. Supp. 1179 (E.D. Wis. 1988).................... 22

Troxel v. Granville,

Re AR ee I iasesipasasnscsisttacenengrnsdinninnios 10

STATUTES

PE. Y, EO TOE, Ta © 5S es cs chesdserciocmisiionteds it

Pes PO A. PU Oe bac ise sks esi cnadiskiens 23

PEF. OG. SUES. LA Br BOIS vada cove sitcsccsescscrciomevcss 16

-iv-

N.Y. Soc. Serv. Law § 383(2)...c.<cesseccasissessectusla 1, 16

NY. Soc. Serv. Law 8§ 392.0000.) 2s ee 23

N.Y. Soc. Serv. Law'§ 40G iii... cies aeons 23

N.Y. Soc. Serv, Law.§ 400(1)is:.s0ssecsiaconsnedccanpedeotiechs 1

REGULATIONS

N.Y. Comp. Codes R. & Regs.

tit. 18; 44646. S(o(S) 3... Bi. Sikh he BOR 3

N.Y. Comp. Codes R. & Regs.

RSL, 20h, We Gee FOE bedi shadnascscacdeaintasasaaenc ae. 18

STATUTES INVOLVED

Statutes Pertaining to Children in Foster Care

N.Y. Soc. Serv. Law § 383(2)

The custody of a child placed out or boarded out

and not legally adopted or for whom legal

guardianship has not been granted shall be vested

during his minority, or until discharged by such

authorized agency from its care and supervision, in

the authorized agency placing out or boarding out

such child and any such authorized agency may in

its discretion remove such child from the home

where placed or boarded.

N.Y. Soc. Serv. Law § 400(1)

When any child shall have been placed in an

institution or in a family home by a social services

official, the social services official may remove such

child from such institution or family home and make

such disposition of such child as is provided by

law....

Statute Pertaining to Status of Adopted Children

N.Y. Dom. Rel. Law § 117(1)(c)

The adoptive parents or parent and the adoptive

child shall sustain toward each other the legal

relation of parent and child and shall have all the

rights and be subject to all the duties of that relation

including the rights of inheritance from and through

each other and the natural and adopted kindred of

the adoptive parent or parents.

STATEMENT OF THE CASE

Andrew was born in 1990. His father was

unknown, his mother abandoned him, and he was

placed into the custody of the City of New York.! The

City placed Andrew with one of its contractor

agencies, respondent Cardinal McCloskey Children’s

& Family Services (“Cardinal McCloskey”), which

arranged for Andrew to be cared for by a foster

parent, petitioner Sylvia Rodriguez. In June 1993,

the Family Court of the State of New York terminated

Andrew’s mother’s parental rights and awarded legal

guardianship and custody of Andrew to the City and

Cardinal McCloskey (A-3).?

Planning for Andrew ultimately to be adopted by

Rodriguez, Cardinal McCloskey and Rodriguez signed

an “Adoptive Placement Agreement” stating the

following:

We are taking this child with the intention of

adoption although we understand that legal

1 When Andrew was born, the Commissioner of Social Services of

the City of New York was the official who assumed legal custody

of children placed in foster care in New York City. The

Commissioner is the head of respondents New York City

Department of Social Services and New York City Child Welfare

Administration, formerly a bureau within the City’s Department

of Social Services. Foster children in New York City are now

placed into the custody of the Commissioner of the New York

City Administration for Children’s Services, a new agency. For

ease of reference, the respondent City of New York and its

agencies will be referred to collectively as “the City” or “municipal

respondents.”

2 Numbers in parentheses preceded by an “A” refer to pages in

the Appendix to the Petition for a Writ of Certiorari.

-2-

custody remains with Card. McCloskey and

that this adoptive placement agreement

remains in effect until the date of legal.

adoption.

The legal adoption will take place after both

Card. McCloskey and we agree that it is in the

child’s best interest.

kk &

If at any time prior to legal adoption it is

determined by the agency or by us that the

child should be removed from our home, we

will cooperate with the agency in carrying this

out in a way that serves the best interest of

the child in the judgement of the agency.

(A4) (quoting Adoptive Placement Agreement).

On March 18, 1994, when Andrew was four years

old, a Cardinal McCloskey caseworker visited

Rodriguez’s home and found Andrew and a three-

year-old foster child “tended only by Rodriguez’s

grandson Edwin Rodriguez ..., a twelve-year-old

emotionally handicapped, special-education student”

(AS). Edwin “appeared to be overwhelmed” by his

charges (AS). After waiting in the home for two hours,

the caseworker called his office for instructions and

was told to remove Andrew and Thomas (A6).

The absence of adult supervision for two foster

children under ten years old violated State

regulations, see N.Y. Comp. Codes R. & Regs. tit. 18,

§ 444.5(c)(3), and Cardinal McCloskey filed a child

maltreatment report, which triggered a_ City

-.

investigation (A6). In the meantime, Rodriguez asked

the City to conduct “an independent review” of the

removal and sought an administrative “fair hearing”

from the State (A6). Rodriguez also sought to visit

Andrew during the period of separation, but her

request was denied except for a single visit held the

day before the hearing.

By mid-April, the City’s investigators had

determined that Andrew should be returned and

Rodriguez should receive training in_ child

supervision (A6-7). Cardinal McCloskey disagreed

and chose to await the City’s “independent review”

hearing (A7). The hearing was conducted in late

June, and a decision directing Andrew’s return was

issued on July 11, 1994 (A7). He was returned two

days later and eventually adopted.

Rodriguez filed suit in district court for herself

and Andrew, claiming that the March 1994 removal,

the denial of visitation without notice and a hearing,

and the delay between the removal and the June

1994 hearing violated their procedural due process

rights. ‘

Respondents moved for summary judgment,

arguing, inter alia, that as a pre-adoptive foster

family, Rodriguez and Andrew had no liberty

interests protected by the Constitution. The district

court disagreed, ruling as a matter of law that the_

March 1994 removal was lawful, but that the’

subsequent denial of visitation without a hearing and

the delay in holding a hearing to review the removal

violated Rodriguez’s and Andrew’s constitutional

rights (A8-14).

After a trial limited to damages, Rodriguez was

awarded $20,000 compensatory — and $10,000

punitive damages from Cardinal McCloskey and

$10,000 compensatory damages from the City.

Andrew was found to have suffered no damages. The

jury awarded him $1 nominal damages and $10,000

punitive damages from Cardinal McCloskey plus $1

nominal damages from the City (A15).

Cardinal McCloskey and the City appealed. The

court of appeals reversed the district court and

dismissed the complaint, ruling that neither the Due

Process Clause nor state law created a liberty

interest in family integrity for Rodriguez and Andrew.

The court of appeals said that this Court’s opinion in

Smith v. Organization of Foster Families for Equality

and Reform, 431 U.S. 816 (1977), “leads (the court]

to the conclusion that any liberty interest arising in

the preservation of a biologically unrelated foster

family would arise, if at all, only under state law, and

not under the Due Process Clause itself” (A19).

The court of appeals’ analysis of state law relied

largely on the principles stated in Kentucky

Department of Corrections v. Thompson, 490 U.S. 454

(1989). The court of appeals said that “[tlo create a

liberty interest, a statute or regulation must contain

explicitly mandatory language, i.e., specific directives

to the decisionmaker that if the regulations’

substantive predicates are present, a particular

outcome must follow” (A20) (internal quotations and

citation omitted).

After reviewing the statutes and regulations

under which petitioners claimed a state-created

liberty interest, the court of appeals concluded that

<i

none of the statutory or regulatory sections

called to our. attention contains any

substantive predicates or explicitly mandatory

language giving directives to decisionmakers

as to the cohabitation or visitation rights of a

foster mother and child in the wake of an

emergency removal of the child from the foster

home. We cannot conclude that these

provisions are sufficient to give plaintiffs the

liberty interests they assert.

(A27).

REASONS WHY THE PETITION SHOULD BE

DENIED

I. It Is Already Established that the Due

Process Clause Does Not Create a Protected

Liberty Interest in Family Integrity for Foster

Families Composed of Unrelated Individuals

Brought Together by a Government Agency that

Retains Legal Custody and Guardianship of the

Child.

The first question in a procedural due process

case is “whether there exists a liberty or property

interest which has been interfered with by the State.”

Kentucky Dep’t of Corrections v. Thompson, 490 U.S.

454, 460 (1989). Such interests “ ‘may arise from two

sources—the Due Process Clause itself and the laws

of the States.’” Id. (quoting Hewitt v. Helms, 459 U.S.

460, 466).

It is well-settled that the Due Process Clause does

not create a protected liberty interest in family

integrity for unrelated individuals brought together

-6-

as a foster family by the government. Like petitioners =

here, the foster parents who commenced Smith v,.

Organization of Foster Families for Equality & Reform,

431 U.S, 816 (1977) (“OFFER’), argued that the

emotional attachments that often develop between

foster parents and foster children generate a

constitutionally protected liberty interest in

remaining together. 431 U.S. at 839.

OFFER explained that constitutional protection

for family integrity is based on substantially more

that the emotional attachments that can form

between children and their caretakers. “[T]he usual

understanding of ‘family’ implies _ biological

_relationships, and most decisions treating the

relation between parent and child have stressed this

element.” Jd. at 843. This constitutional protection

for “family privacy” flows from our conception of

“intrinsic human rights, as they have been

understood in ‘this Nation’s history and tradition.”

Id. at 845 (quoting Moore v. City of East Cleveland,

431 U.S. 494, 503).

Underscoring this point, OFFER cited the marital

relationship as an example of a non-biological

relationship that is given constitutional protection,

calling it “[t]he basic foundation of the family in our

society,” id., a relationship with roots “ ‘older than

the Bill of Rights.”.Jd. at 843 (quoting Griswold v.

Connecticut, 381 U.S. 479, 486). :

Contrasting foster care with these time-honored

family relationships, OFFER noted

important distinctions between the foster

family and the natural family. First, unlike the

a.

earlier cases recognizing a right to family

privacy, the State here seeks to interfere, not

with a relationship having its origins entirely

apart from the power of the State, but rather

with a foster family which has its source in

-state law and contractual arrangements. ...

[W]hatever emotional ties may develop

between foster parent and foster child have

their origins in an arrangement in which the

State has been a partner from the outset.

OFFER, 431 U.S. at 845. After explaining this

distinction, this Court turned its attention to

whether any liberty interests were created by state

law, id. at 846, a question it deemed unnecessary to

resolve. Id. at 847. The court of appeals properly read

this discussion as a recognition that the Due Process

Clause does not create liberty interests of the kind

asserted by petitioners here.

Petitioners make much of the fact that OFFER left

open the possibility that there might be “a small

liberty interest” (Pet. at 12), even for foster parents of

children caring for children whose biological parents

still had parental rights (id. at 10-12); however, it is

apparent that the question considered unresolved

was whether state law created a protected liberty

interest.

Petitioners support their argument that the

question of a Constitution-based liberty interest was

left open by citing the opinion joined by three

concurring Justices, who urged that the plaintiffs’

assertion of a liberty interest should be rejected

outright (Pet. at 12) (quoting OFFER, 431 U.S. at

857-58 (Stewart, J., concurring)). However, the

-8-

concurring opinion’s_ concentration on—New-Yerk’s——_—

statutory scheme makes it evident that the issue

viewed as left open was whether state law created a

protectible liberty interest, not whether such an

interest arose directly from the Due Process Clause.

OFFER, 431 U.S. at 856-63 (Stewart, J., concurring).

OFFER is consistent with other decisions by this

Court recognizing the biological roots of the

constitutional protection for family relationships. In

Moore v. City of East Cleveland, 431 U.S. 494 (1977)

(plurality opinion), this Court invalidated a zoning

restriction that prevented extended families from

living together. The ordinance was distinguished

from one previously upheld by this Court because of

“the overriding factor” that the valid ordinance

“affected only unrelated individuals,” while East

Cleveland’s “slic[ed] deeply into the family itself,” 431

U.S. at 498, by “select[ing] certain categories of

relatives who may live together” and others who

could not. Id. at 499. Like OFFER, Moore emphasized

“that the Constitution protects the sanctity of the

family precisely because the institution of the family

is deeply rooted in this Nation’s history and

tradition.” Id. at 503.

Reno v. Flores, 507 U.S. 292, 311 n.6 (1993),

rejected an argument that Immigration and

Naturalization Service procedures governing the

release of detained juveniles to adult custodians

could not make distinctions based on whether the

proposed custodian was related to the detained child.

“Acceptance of such a_ proposition would

revolutionize much of our family law. Categorical

distinctions between relatives and nonrelatives, and

between relatives of varying degrees of affinity, have

-9-

always played a predominant role in determining

child custody and in innumerable other aspects of

domestic relations.” Id.

Petitioners cite Pierce v. Society of the Sisters of

the Holy Names of Jesus and Mary, 268 U.S. 510

(1925), as “support[ing] the principle that family is

not limited to biological families” because the statute

invalidated in Pierce prohibited any person with

control of a child from having the child educated in a

private school (Pet. at 13).

Petitioners are not aided by Pierce. The private

schools that commenced the suit complained that

“the enactment conflicts with the rights of parents.”

268 U.S. at 532 or of “parents and guardians.” /d. at

533. This Court’s holding was that the statute

“unreasonably interferes with the liberty of parents

and guardians to direct the upbringing and

education of children under their control.” Id. at 534-

35. Here, of course, Andrew was a ward of the City

and Cardinal McCloskey when the events at issue

occurred, not of petitioner Rodriguez.

Later decisions do not give Pierce the expansive

interpretation urged by petitioners. See, e.g., Lehr v.

Robertson, 463 U.S. 248, 257 (1983) (“the ‘liberty’ of

parents to control the education of their children

that was vindicated” in Pierce); Moore, 431 U.S. at

501 (plurality opinion) (citing Pierce as a case that

addressed “traditional parental authority in matters

of child rearing and education”); Troxel v. Granville,

120 S. Ct. 2054, 2060 (2000) (plurality opinion)

(quoting Pierce’s holding that parents and guardians

have certain rights flowing from their control over a

child’s life); id. at 2068 (Thomas, J., concurring)

<n.

(citing Pierce as “hold{ing} that parents have a— are:

fundamental constitutional right to rear their

children”).

Pierce said parents have certain rights as “a

counterpart of the responsibilities they have

assumed.” Lehr, 463 U.S. at 257. Pierce did not

recognize a constitutionally protected liberty interest

for contracted caretakers who have neither a

biological connection to a child nor legal

guardianship. This emphasis on rights flowing from

obligations is noteworthy here since petitioner

Rodriguez actually had two foster children in her

home, Andrew and three year-old Thomas, who was

removed from the Rodriguez home with Andrew (A5-

6). Thomas was never returned because petitioner

Rodriguez decided she no longer wanted him (Ct.

App. App. at A554-56), and neither law nor any

sense of familial duty obliged Rodriguez to continue

caring for that child.

Nor are petitioners aided by their citation of

Brown v. County of San Joaquin, 601 F. Supp 653

(E.D. Cal. 1985); Berhow v. Crow, 423 So. 2d 371

(Fla Dist. Ct. App. 1982); or James v. McLinden, 341

F. Supp 1233 (D. Conn. 1969), as cases finding a

“Due Process Clause-vased liberty interest” in foster

families (Pet. at 15). -

Brown is irreconcilably at odds with this Court’s

precedents. Moreover, the existence of a

constitutionally created liberty interest for foster

families has been rejected by the Court of Appeals for

the Ninth Circuit, the very court that reviews the

decisions of the district court that issued Brown. In

Backlund v. Barnhart, 778 F.2d 1386 (9th Cir. 1985),

-11-

the court agreed with the Court of Appeals for the

Fifth Circuit that since the state creates the foster

care relationship, it is a creature of legislation, not a

relationship with a constitutionally derived liberty

interest. 778 F.2d at 1389-90 (quoting Drummond v.

Fulton County Dep’t of Family & Children’s Servs.,

563 F.2d 1200, 1207 (5th Cir. 1977)). Brown alone

was cited as a case opposed to that holding. /d. at

1390.

In Berhow, the dispositive fact was that the foster

parents initially received custody from “the natural

mother—not the state,” 423 So. 2d at 373, and “were

registered in [California] as [the child’s] parents upon

the consent of the natural mother.” /d. at 372. The

same is true for James, which emphasized the

absence of state involvement in the relationship

between the child and her caretaker, including the

fact that the plaintiff “has fed and clothed [the child]

from the subsistence money she received.” Id.

These cases fall far short of holding that the

Constitution creates a liberty interest in family

integrity for foster parents like petitioner Rodriguez,

who agreed to care for a ward of the state who was

not related to her. This simply is not the historically

rooted family relationship given protection by the

Due Process Clause. ~

-12-

Il. New York Law Does Not Create a

Constitutionally Protected Liberty Interest in

Family Integrity for Pre-Adoptive Foster Parents

and Children. Until a Child Is Adopted, the

Responsible Government Agency and Its Contract

Agencies May Remove Any Child from His Foster

Home Whenever a Removal Is in the Child’s Best

Interests, a Broad, Subjective Standard that

Affords Substantial Discretion to the Agencies

with Legal Responsibility for the Child.

The court of appeals correctly concluded that New

York statutes and regulations do not give rise to any

constitutionally protected liberty- interest for pre-

adoptive foster care placements.

Mere expectations do not necessarily give rise

to a state-created liberty interest protected by

the Due Process Clause. “[A] state creates a

protected liberty interest by placing

substantive limits on official discretion.”

Kentucky Department of Corrections v.

Thompson, 490 U.S. at 462 (quoting Olim v.

Wakinekona, 461 U.S. 238, 249 (1983)). “[T]he

most common manner in which a State

creates a liberty interest is by establishing

‘substantive predicates’ to govern official

decisionmaking . . . and further, by mandating

the outcome to be reached upon a finding that

the relevant criteria have been met.” Kentucky

Department of Corrections v. Thompson, 490

U.S. at 462 (quoting Hewitt v. Helms, 459 U.S.

at 472 (“specified substantive predicates”)). To

create a liberty interest, a statute or regulation

must “contain ‘explicitly mandatory language,’

i.e., specific directives to the decisionmaker

«$2.

that if the regulations’ substantive predicates

are present, a particular outcome must

follow.” Kentucky Department of Corrections uv.

Thompson, 490 U.S. at 463 (quoting Hewitt v.

Helms, 459 U.S. at 472).

(A19-20).

In Meachum v. Fano, 427 U.S. 215, 226 (1976)

this Court ruled that regulations governing transfers

from one prison to another did not create a liberty

interest because there was “no right” to stay in a

particular place that was “defeasible only upon proof

of specific acts of misconduct.” Rather, the

regulations indicated that transfers were “made for a

variety of reasons and often involve no more than

informed predictions as to what would best serve

institutional security or the safety and welfare of the

inmate.” 427 U.S. at 225.

When the relevant New York laws are analyzed

using these principles, it is apparent that they do not

create any right for pre-adoptive foster families to

remain intact. Three Justices concurring in the

result in OFFER did review New York’s statutes and

reached precisely that conclusion.

[T]he predicate for invoking the Due Process

Clause—the existence of state-created liberty

or property—was missing in Meachum just as

it is missing here. New York confers no right

on foster families to remain intact, defeasible

only upon proof of specific acts or

circumstances. As was true of prison transfers

in Meachum, transfers in and out of foster

families “are made for a variety of reasons and _

she

— Sc See

often involve no more than _ informed

predictions as to what would best serve .. .

the safety and welfare of the [child].” 427 U.S:

at 225.

Similarly, New York law provides no basis

for a justifiable expectation on the part of

foster families that their relationship will

continue. indefinitely. The District Court in

this litigation recognized as much, noting that

the typical foster-care contract gives the

agency the right to recall the child “upon

request,” and commenting that the

discretionary authority vested in the agency

“is on its face incompatible with plaintiffs’

claim of legal entitlement.” 418 F. Supp. at

ee

This is not to say that under the law of New

York foster children are the pawns of the

State, who may be whisked from family to

family at the whim of state officials. ... But

the protection that foster children have is

simply the requirement of state law that

decisions about’ their placement be

determined in the light of their best interests.

This requirement is not “liberty or property”

protected by the Due Process Clause, and it

confers no right or expectancy of any kind in

the continuity of the relationship between

foster parents and children.

OFFER, 431 U.S. at 859-61 (Stewart, J., concurring)

(citations omitted) (brackets in original).

so

While OFFER involved foster care prior to

termination of parental rights, not pre-adoptive

placements, everything stated above applies with

equal force to the discretion reposed in New York

officials when deciding whether to remove a child

from a pre-adoptive home. ,

When Andrew’s natural mother’s rights were

terminated, his guardianship was given to the City

and Cardinal McCloskey by the family court. He was

still a foster child under New York law, and petitioner

Rodriguez remained a foster parent. See N.Y. Soc.

Serv. Law § 371(19). “The rights and obligations of

foster parents are limited to those provided in the

applicable statutes or pursuant to their contract with

the placement agency.” In re Dina Michelle S., 653

N.Y.S.2d 677, 678 (App. Div. 1997).

Child-care agencies have broad discretion to

remove children from foster homes. “The custody of a

child placed out or boarded out and not legally

adopted or for whom legal guardianship has not been

granted shall be vested during his minority . . . in the

authorized agency placing out or boarding out such

child and any such authorized agency may in its

discretion remove such child from the home where

placed or boarded.” N.Y. Soc. Serv. Law § 383(2).

Thus, until adoption, “foster care ‘custodians” do not

have “true custody.” Spence-Chapin Adoption Serv. v.

Polk, 274 N.E.2d 431, 434 (N.Y. 1971) (requiring

foster parent to comply with agency decision to

return to natural mother a child previously

surrendered for adoption).

Ms. Rodriguez’s adoption agreement’ with

Cardinal McCloskey recognized that Andrew’s “legal

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pe at et ete meaner —————wL__o.< <<.

custody” remained with Cardinal McCloskey until

adoption and that the agency could remove the child;

she agreed to cooperate with any such decision

(A27). This was not a waiver of her procedural rights

under state law to contest a removal, but it shows

that Ms. Rodriguez had no expectation that she was

somehow exempted from child-care agencies’

statutory authority to make removals in the best

interests of a child.

New York’s courts protect agencies’ statutory and

contractual authority. In In re Hasani B., 600

N.Y.S.2d 694 (App. Div. 1993), a state appellate

court set aside a family court order (i) directing a

local commissioner of social services to certify a

child’s legal guardian as a foster parent and (ii)

restricting the commissioner’s discretion to remove

the child only to emergency situations. The court

ruled that the petitioner could not be~ both a legal

guardian and foster parent since “[a] legal guardian

has exclusive control, custody and care of the

children, as opposed to the status of a foster parent

where the agency in foster care placement continues

to exercise care, custody or guardianship of the

children.” 600 N.Y.S.2d at 697 (citation omitted).

Similarly, the family court could not “eliminate[]

respondent’s statutory right to remove a child from a

foster home (subject to certain procedural

requirements) without prior court authorization.” Id.

at 698.

Petitioners’ claim of a_ state-created liberty

interest is heavily dependent on a host of statutes

and regulations providing procedural rights to foster

parents (Pet. at 1-5). The court of appeals carefully

reviewed the statutes and regulations relied on by

=09s

petitioners and correctly concluded that “these

sections [contain] no language providing substantive

predicates for, or substantive limitations on, the

exercise of official discretion with respect to matters

of removal or visitation” (A25; A22-27).

Petitioners urge that the court of appeals misread

a regulation, N.Y. Comp. Codes R. & Regs., tit. 18, |

§ 421.2(b), that purportedly creates a liberty interest

because it provides that removals of certain cliildren

from “the care and custody” of certain people should

occur only “when it is clearly established that such

action is in such child’s best interest” (Pet. at 24-27).

The court of appeals ruled that the regulation did not

apply to pre-adoptive foster parents like petitioner

Rodriguez because such foster parents do not have

“custody” of a foster child, which remains with the

child-care agencies until adoption (A26).

This ruling was correct, see Spence-Chapin, 274

N.E.2d at 434 (foster parents do not have “true

custody”); Hasani B., 600 N.Y.S.2d at 697, but not

dispositive in any event. Even if the regulation did

apply to petitioner, it does not create specific

substantive predicates that channel the exercise of

the discretion to remove a child from a particular

home. Such decisions remain governed by the best

interests of the child standard, which does not utilize

the kind of specific substantive predicates that create

liberty interests.

Far from creating rights and expectations for

individuals that a given child is theirs to keep, New

York law makes it plain that, subject to traditional

protections for parental rights, agency decisions

regarding child custody, planning, and adoption are

1s.

guided by the best interests of the child. This

standard does not authorize a certain result only

upon the occurrence of specified predicates. Rather,

it mandates a wide-ranging, open-ended inquiry into

the myriad of complex, subjective factors that should

be considered when planning a child’s future

custody. Properly applied, the best interests

standard is the antithesis of taking action upon the

occurrence of a specific factual predicate. “The only

absolute in the law governing custody of children is

that there are no absolutes.” Friederwitzer uv.

Friederwitzer, 432 N.E.2d 765, 767 (N.Y. 1982).

When courts apply the best interests standard to

determine custody, “there are policies designed not

to bind the courts, but to guide them in determining

what is in the best interests of the child.” Eschbach

v. Eschbach, 436 N.E.2d 1260, 1262 (N.Y. 1982).

The crucial factors are far from specific. “Primary

among the circumstances to be considered in

determining the best interests of the child are the

ability to provide for the child’s emotional and

intellectual development, the quality of the home

environment and the parental guidance provided.”

Louise E.S. v. W. Stephen S., 477 N.E.2d 1091, 1092

(N.Y. 1985). While continuity is an important

component of any best interests assessment, no

statute, regulation, or contract assures pre-adoptive

foster parents that they will continue as foster

parents and ultimately adopt the child absent

occurrence of specific substantive predicates. The

City and Cardinal McCloskey had the responsibility

as Andrew’s guardians to weigh the numerous

factors that go into a best interests determination

and make the decision that seemed wisest. The fact

that such an assessment would consider continuity

30.

of care as a factor supporting the status quo does

not mean that the state created a liberty interest in

continuity.

Moreover, the outcome sought by petitioners

would create a legal twilight zone where there is

doubt about child-care agencies’ ability to make

other important decisions not involving custody,

such as consenting to needed medical care. As legal

guardians, agencies are often called upon to make

such judgments, and this ruling raises the prospect

that pre-adoptive foster parents asserting parent-

type liberty interests will claim some right to control

or participate in that process. This outcome is both

undesirable and plainly not intended by New York

law. See Hasani B., 600 N.Y.S.2d at 698 (criticizing

order allowing caretaker to be both foster parent and

legal guardian because it “raises the possibility of a

clash between the authority of petitioner as legal

guardian and the statutory responsibility of the

[agency]”).

Nor is there any conflict between the court of

appeals’ ruling here and those of other circuits. The

erroneous constitutional holdings of the district

court in McLaughlin v. Pernsley, 693 F. Supp 318

(E.D. Pa. 1988), affd, 876 F.2d 308 (3d Cir. 1989)

(Pet. Br. at 17-19), are not holdings of the Third

Circuit Court of Appeals. The district court found

that a race-based transfer of a foster child violated

the- plaintiffs’ equal protection and due process

rights. The latter finding was based on the

governmental defendant’s failure to follow a

regulation providing certain foster parents with

procedural protections. 693 F. Supp. at 325-27. The

district court held that the foster parents “did not

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{

receive any of these procedural rights entitled to

them under this regulation by virtue of the Due

Process Clause. Under these circumstances, this

Court is obligated to find that the Department of

Human Services’ conduct violated plaintiffs’ due

process rights.” Id. at 327. Since it is well-settled

that procedural requirements do not create

constitutionally protected interests, Olim v.

Wakinekona, 461 U.S. 238, 250-51 (1983), the

district court’s ruling was erroneous.

Petitioners label as a “specific substantive

predicate{],” a provision in the Pennsylvania

regulations at issue in McLaughlin making them

applicable only to “ ‘qualified’ foster parents” (Pet. at

18), but a definition of the group of people entitled to

procedural rights is not a substantive predicate. The

regulation did not attempt to spell out the predicate

facts that would lead to a child’s removal from a

foster home.

In any event, the court of appeals did not address

these issues. The government did not appeal in

McLaughlin, 876 F.2d at 312, and the court of

appeals emphasized that it was not reviewing the

district court’s “unchallenged” analysis of the

constitutional issues. Jd. at 318. In passing, it is

noteworthy that a district court with such an

expansive view of state-created liberty interests

nevertheless cited OFFER for the proposition that an

argument for a liberty interest arising “from the Due

Process Clause itself ... might have little force.” 693

F. Supp at 325 (citation omitted).

Nor is there a conflict between the court of

appeals’ decision here and other decisions cited by

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petitioners as evincing use of the supposedly “less

restrictive ‘expectations of permanency’ test in the

foster care removal context” (Pet. at 20). Two of the

three cited decisions, Thelan v. Catholic Soc. Servs.,

691 F. Supp 1179 (E.D. Wis. 1988), and Brown, 601

F. Supp 653 (Pet. at 21), are district court opinions,

not those of a court of appeals, and as previously

noted, Brown’s reasoning has been rejected by the

court of appeals for the circuit where the Brown

court sits (supra pp. 11-12). And as petitioners

acknowledge, Spielman v. Hildebrand, 873 F.2d 1377

(10th Cir. 1989), did not “explicitly decid[e] whether

the plaintiff preadoptive foster family had a liberty

interest in their relationship” (Pet. at 20). eri

Finally, Andrew had no independent liberty

interest in remaining in the Rodriguez home. The fact

that a child might be harmed by an improvident

change in custody does not create a constitutionally

protected liberty interest in the status quo. OFFER,

431 U.S. at 840; see also Reno, 507 U.S. at 304-05.

In the context of temporary foster care placements,

one court of appeals has held that young foster

children like Andrew do not have a constitutionally

protected “stability interest.” Drummond v. Fulton

County Dep’t of Family & Children’s Servs., 563 F.2d

1200, 1208 (Sth Cir. 1977)

[T]he state’s motive in interrupting [the child’s]

environment at any point was always to move

him to a place which it considered superior,

over the long range, for his particular needs at

the time. Since [the child] can point to no

source for a right in conflict with that state

program, we hold that [the child] has no

liberty interest as asserted here.

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563 F.2d at 1209. New York’s child-care statutes

also focus on a child’s best interests and did not

create any expectation for Andrew that his interests

would best be served in any particular manner

(supra pp. 16-20).

This is not to say that child-care agencies always

know best and are empowered to exercise

unrestrained discretion. New York provides ample

avenues for administrative and judicial review of

agency decisions so that the goal of serving a child’s

best interests can be achieved in as high a

percentage of cases as possible. See, e.g., N.Y. Soc.

Serv. Law §§ 392, 400; N.Y. Fam. Ct. Act § 1055.

In this very case, New York’s review procedures

led to a decision returning Andrew to petitioner

Rodriguez’s home after a _ full investigation

determined that the inadequate supervision that led

to his removal was not a recurring problem. The

jury’s award of $1 nominal damages to Andrew belies

any claim that he was devastated by these events.

in.

CONCLUSION

THE PETITION FOR A WRIT OF .

CERTIORARI SHOULD BE DENIED.

Respectfully submitted,

JEFFREY D. FRIEDLANDER,

First Assistant Corporation Counsel

of the City of New York,

LEONARD J. KOERNER,

Counsel of Record,

100 Church Street,

New York, New York 10007.

(212) 788-1010 or 1031

KRISTIN M. HELMERS,

ALAN G. KRAMS,

of Counsel.

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