# Opposition Brief — Rodriguez v. McLoughlin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1051

## Text

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
QUEST Iiiss PIRI ELD sccesscccceseceseconsocsioussnpenscennies i
RE SI Fee ENED sec cnccevtcnseressanhstonssspnasapannns lil
REE WEEE TEEN. o osconccractensesdsneksotayenenchagiapipuns 1
CEPR RMRUMEETE MO” BUMED MAPMIIUD son cssocssssicesnnccsccensansionenine 2

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

-21-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0825%3A3. Public record. Not legal advice.