In this litigation appellees, individual foster parents and a
foster parents organization, sought declaratory and injunctive
relief against New York State and New York City officials, alleging
that the statutory and regulatory procedures for removal of foster
children from foster homes violated the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. Under the New York
Social Services Law the authorized placement agency has discretion
to remove the child from the foster home, and regulations provide
for 10 days' advance notice of removal. Objecting foster parents
may request a conference with the Social Services Department where
the foster parent may appear with counsel to be advised of the
reasons for removal and to submit opposing reasons. Within five
days after the conference the agency official must render a written
decision and send notice to the foster parent and agency. If the
child is removed after the conference the foster parent may appeal
to the Department of Social Services, where a full adversary
administrative hearing takes place, and the resultant determination
is subject to judicial review. Removal is not stayed pending the
hearing and judicial review. New York City provides additional
procedures (SSC Procedure No. 5) to the foregoing statewide scheme,
under which, in lieu of or in addition to the conference, the
foster parents are entitled to a full trial-type pre-removal
hearing if the child is being transferred to another foster home.
An additional statewide procedure is provided by N.Y.Soc.Serv.Law §
392 whereby a foster parent may obtain pre-removal judicial review
of an agency
Page 431 U. S. 817
decision to remove a child who has been in foster care for 18
months or more. The District Court held that the State's
pre-removal procedures are constitutionally defective, and
that,
"before a, foster child can be peremptorily transferred . . . to
another foster home or to the natural parents . . . The is entitled
to [an administrative] hearing at which all concerned parties may
present any relevant information. . . ."
Such a hearing would be held automatically, and before an
officer free from contact with the removal decision who could order
that the child remain with the foster parents. Appellees contended
that, when a child has lived in a foster home for a year or more, a
psychological tie is created between the child and the foster
parents that constitutes the foster family the child's
"psychological family," giving the family a "liberty interest" in
its survival as a unit that is protected by the Fourteenth
Amendment. The District Court, avoiding the "novel" question of
whether the foster home is entitled to the same constitutional
deference as the biological family, held that the foster child had
an independent right to be heard before being condemned to suffer
"grievous loss."
Held:
1. The District Court erred in finding that the "grievous loss"
to the foster child resulting from an improvident removal decision
implicated the due process guarantee, as the determining factor is
the nature of the interest involved, rather than its weight.
Meachum v. Fano, 427 U. S. 215,
427 U. S. 224;
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S.
570-571. Pp.
431 U. S.
840-841.
2. The challenged procedures are constitutionally adequate even
were it to be assumed that appellees have a protected "liberty
interest" under the Fourteenth Amendment. The procedures employed
by the State and New York City satisfy the standards for
determining the sufficiency of procedural protections, taking into
consideration the factors enumerated in
Mathews v.
Eldridge, 424 U. S. 319,
424 U. S. 335:
(1) the private interest that will be affected by the official
action; (2) the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and (3) the
government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail. Pp.
431 U. S.
847-856.
418 F.
Supp. 277, reversed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART, J.,
filed an opinion concurring in the judgment, in which BURGER, C.J.,
and REHNQUIST, J., joined,
post, p.
431 U. S.
856.
Page 431 U. S. 818
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellees, individual foster parents [
Footnote 1] and an organization of foster parents,
brought this civil rights class action pursuant to 42 U.S.C. § 1983
in the United States District Court for
Page 431 U. S. 819
the Southern District of New York, on their own behalf and on
behalf of children for whom they have provided homes for a year or
more. They sought declaratory and injunctive relief against New
York State and New York City officials, [
Footnote 2]
Page 431 U. S. 820
alleging that the procedures governing the removal of foster
children from foster homes provided in N.Y.Soc.Serv.Law §§ 383(2)
and 400 (McKinney 1976), and in 18 N.Y.C.R.R. § 450.14 (1974)
violated the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. [
Footnote
3] The District
Page 431 U. S. 821
Court appointed independent counsel for the foster children to
forestall any possibility of conflict between their interests and
the interests asserted by the foster parents. [
Footnote 4] A group of
Page 431 U. S. 822
natural mothers of children in foster care [
Footnote 5] were granted leave to intervene
[
Footnote 6] on behalf of
themselves and others similarly situated. [
Footnote 7]
A divided three-judge District Court concluded that "the
pre-removal procedures presently employed by the State are
constitutionally defective," holding 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 concerned parties
may present any relevant information to the administrative
decisionmaker charged with determining the future placement of the
child,"
Organization of Foster Families v.
Dumpson, 418 F.
Supp. 277, 282 (1976). Four appeals to this Court were taken
from the ensuing judgment declaring the challenged statutes
unconstitutional and permanently enjoining their
Page 431 U. S. 823
enforcement. The New York City officials are appellants in No.
76-180. The New York State officials are appellants in No. 76-183.
Independent counsel appointed for the foster children appeals on
their behalf in No. 76-5200. The intervening natural mothers are
appellants in No. 76-5193. We noted probable jurisdiction of the
four appeals. 429 U.S. 883 (1976). We reverse.
I
A detailed outline of the New York statutory system regulating
foster care is a necessary preface to a discussion of the
constitutional questions presented.
A
The expressed central policy of the New York system is that
"it is generally desirable for the child to remain with or be
returned to the natural parent because the child's need for a
normal family life will usually best be met in the natural home,
and . . . parents are entitled to bring up their own children
unless the best interests of the child would be thereby
endangered,"
Soc.Serv.Law § 384 b(1)(a)(ii) (McKinney Supp. 1976-1977). But
the State has opted for foster care as one response to those
situations where the natural parents are unable to provide the
"positive, nurturing family relationships" and "normal family life
in a permanent home" that offer "the best opportunity for children
to develop and thrive." §§ 38b(1)(b), (1)(a)(i).
Foster care has been defined as
"[a] child welfare service which provides substitute family care
for a planned period for a child when his own family cannot care
for him for a temporary or extended period, and when adoption is
neither desirable nor possible."
Child Welfare League of America, Standards for Foster Family
Care Service 5 (1959). [
Footnote
8] Thus,
Page 431 U. S. 824
the distinctive features of foster care are, first, "that it is
care in a
family, it is noninstitutional substitute care,"
and, second, "that it is for a
planned period -- either
temporary or extended. This is unlike adoptive placement, which
implies a permanent substitution of one home for another." Kadushin
355.
Under the New York scheme children may be placed in foster care
either by voluntary placement or by court order. Most foster care
placements are voluntary. [
Footnote
9] They occur when physical or mental illness, economic
problems, or other family crises make it impossible for natural
parents, particularly single parents, to provide a stable home life
for their children for some limited period. [
Footnote 10] Resort to such placements
Page 431 U. S. 825
is almost compelled when it is not possible in such circumstance
to place the child with a relative or friend or to pay for the
services of a homemaker or boarding school.
Voluntary placement requires the signing of a written agreement
by the natural parent or guardian, transferring the care and
custody of the child to an authorized child welfare agency.
[
Footnote 11]
N.Y.Soc.Serv.Law § 384 a(1) (McKinney Supp. 1976-1977). Although,
by statute, the terms of such agreements are open to negotiation, §
38a(2)(a), it is contended that agencies require execution of
standardized forms. Brief for Appellants in No. 76-5193, p. 25 n.
17.
See App. 63a-64a, 65a-67a. The agreement may provide
for return of the child to the natural parent at a specified date
or upon occurrence of a particular event, and if it does not, the
child must be returned by the agency, in the absence of a court
order, within 20 days of notice from the parent. § 384 a(2)(a).
[
Footnote 12]
Page 431 U. S. 826
The agency may maintain the child in an institutional setting,
§§ 37b, 37c, 37d (McKinney 1976), but more commonly acts under its
authority to "place out and board out" children in foster homes. §
374(1). [
Footnote 13] Foster
parents, who are licensed by the State or an authorized foster care
agency, §§ 376, 377, provide care under a contractual arrangement
with the agency, and are compensated for their services.
See 18 N.Y.C.R.R. §§ 606.2, 606.6 (1977); App. 76a, 81a.
The typical contract expressly reserves the right of the agency to
remove the child on request. 418 F. Supp. at 281; App. 76a, 79a.
See N.Y.Soc.Serv.Law § 383(2) (McKinney 1976). [
Footnote 14] Conversely, the foster
parent may cancel the agreement at will. [
Footnote 15]
The New York system divides parental functions among agency,
foster parents, and natural parents, and the definitions of the
respective roles are often complex and often unclear. [
Footnote 16]
Page 431 U. S. 827
The law transfers "care and custody" to the agency, § 38a;
see also § 383(2), but day-to-day supervision of the child
and his activities, and most of the functions ordinarily associated
with legal custody, are the responsibility of the foster parent.
[
Footnote 17] Nevertheless,
agency supervision of the performance of the foster parents takes
forms indicating that the foster parent does not have the full
authority of a legal custodian. [
Footnote 18] Moreover, the natural parent's placement of
the child with the agency does not surrender legal guardianship;
[
Footnote 19] the parent
Page 431 U. S. 828
retains authority to act with respect to the child in certain
circumstances. [
Footnote 20]
The natural parent has not only the right but the obligation to
visit the foster child and plan for his future; failure of a parent
with capacity to fulfill the obligation for more than a year can
result in a court order terminating the parent's rights on the
ground of neglect. §§ 384-b(4), (7).
See also § 384-b(5);
N.Y.Dom.Rel.Law § 111 (McKinney Supp. 1976-1977); N.Y.Family Court
Act § 611 (McKinney Supp. 1976-1977). [
Footnote 21]
Children may also enter foster care by court order. The Family
Court may order that a child be placed in the custody of an
authorized child care agency after a full adversary judicial
hearing under Art. 10 of the New York Family Court Act, if it is
found that the child has been abused or neglected by his natural
parents. §§ 1052, 1055. In addition, a minor adjudicated a juvenile
delinquent, or "person in need of supervision" may be placed by the
court with an agency. §§ 753, 754, 756. The consequences of foster
care placement by court order do not differ substantially from
those for children voluntarily placed, except that the parent is
not entitled to return of the child on demand pursuant to
Soc.Serv.Law § 384-a(2)(a); termination of foster care must then be
consented to by the court. § 383(1). [
Footnote 22]
Page 431 U. S. 829
B
The provisions of the scheme specifically at issue in this
litigation come into play when the agency having legal custody
determines to remove the foster child from the foster home, either
because it has determined that it would be in the child's best
interests to transfer him to some other foster home, or to return
the child to his natural parents in accordance with the statute or
placement agreement. Most children are removed in order to be
transferred to another foster home. [
Footnote 23] The procedures by which foster parents may
challenge a removal made for that purpose differ somewhat from
those where the removal is made to return the child to his natural
parent.
Section 383(2), n. 3,
supra, provides that the
"authorized agency placing out or boarding [a foster] child . .
. may in its discretion remove such child from the home where
placed or boarded."
Administrative regulations implement this provision. The agency
is required, except in emergencies, to notify the foster parents in
writing 10 days in advance of any removal. 18 N.Y.C.R.R. §
450.10(a) (1976). [
Footnote
24] The notice advises the foster parents that, if they object
to the child's removal, they may request a "conference" with the
Social Services Department.
Ibid. The department schedules
requested conferences within 10 days of the receipt of the request.
§ 450.10(b). The foster parent may appear with counsel at the
conference, where he will
"be advised of the
Page 431 U. S. 830
reasons [for the removal of the child] and be afforded an
opportunity to submit reasons why the child should not be
removed."
§ 450.10(a). [
Footnote
25] The official must render a decision in writing within five
days after the close of the conference, and send notice of his
decision to the foster parents and the agency. § 450.10(c). The
proposed removal is stayed pending the outcome of the conference. §
450.10(d).
If the child is removed after the conference, the foster parent
may appeal to the Department of Social Services for a "fair
hearing," that is, a full adversary administrative hearing, under
Soc.Serv.Law § 400, [
Footnote
26] the determination of which is subject to judicial review
under N.Y.Civ.Prac.Law § 7801
et seq. (McKinney 1963);
however, the removal is not automatically stayed pending the
hearing and judicial review. [
Footnote 27]
This statutory and regulatory scheme applies statewide.
[
Footnote 28]
Page 431 U. S. 831
In addition, regulations promulgated by the New York City Human
Resources Administration, Department of Social Services -- Special
Services for Children (SSC) provide even greater procedural
safeguards there. Under SSC Procedure No. 5 (Aug. 5, 1974), in
place of or in addition to the conference provided by the state
regulations, the foster parents may request a full trial-type
hearing before the child is removed from their home. This procedure
applies, however, only if the child is being transferred to another
foster home, and not if the child is being returned to his natural
parents. [
Footnote 29]
One further pre-removal procedural safeguard is available. Under
Soc.Serv.Law § 392, the Family Court has jurisdiction to review, on
petition of the foster parent or the agency, the status of any
child who has been in foster care for 18 months or longer.
[
Footnote 30] The foster
parents, the natural parents, and all
Page 431 U. S. 832
interested agencies are made parties to the proceeding. §
392(4). After hearing, the court may order that foster care be
continued, or that the child be returned to his natural parents, or
that the agency take steps to free the child for adoption.
[
Footnote 31] § 392(7).
Moreover, § 392(8) authorizes the court to issue an "order of
protection" which "may set forth reasonable conditions of behavior
to be observed for a specified time by a person or agency who is
before the court." Thus, the court may order not only that foster
care be continued, but, additionally, "in assistance or as a
condition of" that order, that the agency leave the child with the
present foster parent. [
Footnote
32] In other words, § 392 provides a mechanism whereby a foster
parent may obtain pre-removal judicial review of an agency's
decision to remove a child who has been in foster care for 18
months or more.
Page 431 U. S. 833
C
Foster care of children is a sensitive and emotion-laden
subject, and foster care programs consequently stir strong
controversy. The New York regulatory scheme is no exception. New
York would have us view the scheme as described in its brief:
"Today New York premises its foster care system on the accepted
principle that the placement of a child into foster care is solely
a temporary, transitional action intended to lead to the future
reunion of the child with his natural parent or parents, or if such
a reunion is not possible, to legal adoption and the establishment
of a new permanent home for the child."
Brief for Appellants in No. 76-183, p. 3. Some of the parties
and
amici argue that this is a misleadingly idealized
picture. They contend that a very different perspective is revealed
by the empirical criticism of the system presented in the record of
this case and confirmed by published studies of foster care.
From the standpoint of natural parents, such as the appellant
intervenors here, foster care has been condemned as a class-based
intrusion into the family life of the poor.
See, e.g.,
Jenkins, Child Welfare as a Class System, in Children and Decent
People 3 (A. Schorr ed.1974). And
see generally tenBroek,
California's Dual System of Family Law: Its Origins, Development
and Present Status (pt. I), 16 Stan.L.Rev. 257 (1964); (pt. II), 16
Stan.L.Rev. 900 (1964); (pt. III), 17 Stan.L.Rev. 614 (1965). It is
certainly true that the poor resort to foster care more often than
other citizens. For example, over 50% of all children in foster
care in New York City are from female-headed families receiving Aid
to Families with Dependent Children. Foundation for Child
Development, State of the Child: New York City 61 (1976). Minority
families are also more likely to turn to foster
Page 431 U. S. 834
care; 52.3% of the children in foster care in New York City are
black and 25.5% are Puerto Rican. Child Welfare Information
Services, Characteristics of Children in Foster Care, New York City
Reports, Table No. 2 (Dec. 31, 1976). [
Footnote 33] This disproportionate resort to foster
care by the poor and victims of discrimination doubtless reflects
in part the greater likelihood of disruption of poverty-stricken
families. Commentators have also noted, however, that middle- and
upper-income families who need temporary care services for their
children have the resources to purchase private care.
See,
e.g., Rein, Nutt, & Weiss 24, 25. The poor have little
choice but to submit to state-supervised child care when family
crises strike.
Id. at 34.
The extent to which supposedly "voluntary" placements are in
fact voluntary has been questioned on other grounds as well. For
example, it has been said that many "voluntary" placements are in
fact coerced by threat of neglect proceedings, [
Footnote 34] and are not in fact voluntary
in the sense of the product of an informed consent. Mnookin I 599,
601. Studies also suggest that social workers of middle-class
backgrounds, perhaps unconsciously, incline to favor continued
placement in foster care with a generally higher-status family
rather than return the child to his natural family, thus reflecting
a bias that treats the natural parents' poverty and lifestyle as
prejudicial to the best interests of the child. Rein, Nutt, &
Weiss 42-44; Levine,
Caveat Parens: A Demystification of
the Child Protection System, 35 U.Pitt.L.Rev. 1, 29 (1973). This
accounts, [
Footnote 35] it
has been said, for the hostility of agencies to the
Page 431 U. S. 835
efforts of natural parents to obtain the return of their
children. [
Footnote 36]
Appellee foster parents, as well as natural parents, question
the accuracy of the idealized picture portrayed by New York. They
note that children often stay in "temporary" foster care for much
longer than contemplated by the theory of the system.
See,
e.g., Kadushin 411-412; Mnookin I 610-613; Wald 662-663; Rein,
Nutt, & Weiss 37-39. [
Footnote 37] The
Page 431 U. S. 836
District Court found as a fact that the median time spent in
foster care in New York was over four years. 418 F. Supp. at 281.
Indeed, many children apparently remain in this "limbo"
indefinitely. Mnookin II 226, 273. The District Court also found
that the longer a child remains in foster care, the more likely it
is that he will never leave: "[T]he probability of a foster child
being returned to his biological parents declined markedly after
the first year in foster care." 418 F. Supp. at 279 n. 6.
See
also E. Sherman, R. Neuman, & A. Shyne, Children Adrift in
Foster Care: A Study of Alternative Approaches 3 (1973); Fanshel,
The Exit of Children from Foster Care: An Interim Research Report,
50 Child Welfare 65, 67 (1971). It is not surprising, then, that
many children, particularly those that enter foster care at a very
early age, [
Footnote 38] and
have little or no contact with their natural parents during
extended stays in foster care, [
Footnote 39] often develop deep emotional ties with their
foster parents. [
Footnote
40]
Page 431 U. S. 837
Yet such ties do not seem to be regarded as obstacles to
transfer of the child from one foster placement to another. The
record in this case indicates that nearly 60% of the children in
foster care in New York City have experienced more than one
placement, and about 28% have experienced three or more. App. 189a.
See also Wald 645-646; Mnookin I 625-626. The intended
stability of the foster-home management is further damaged by the
rapid turnover among social work professionals who supervise the
foster care arrangements on behalf of the State.
Id. at
625; Rein, Nutt, & Weiss 41; Kadushin 420. Moreover, even when
it is clear that a foster child will not be returned to his natural
parents, it is rare that he achieves a stable home life through
final termination of parental ties and adoption into a new
permanent family. Fanshel, Status Changes of Children in Foster
Care: Final
Page 431 U. S. 838
Results of the Columbia University Longitudinal Study, 55 Child
Welfare 143, 145, 157 (1976); Mnookin II 275-277; Mnookin I
612-613.
See also n
23,
supra.
The parties and
amici devote much of their discussion
to these criticisms of foster care, and we present this summary in
the view that some understanding of those criticisms is necessary
for a full appreciation of the complex and controversial system
with which this lawsuit is concerned. [
Footnote 41] But the issue presented by the case is a
narrow one. Arguments asserting the need for reform of New York's
statutory scheme are properly addressed to the New York
Legislature. The relief sought in this case is entirely procedural.
Our task is only to determine whether the District Court correctly
held that the present procedure preceding the removal from a foster
home of children resident there a year or more are constitutionally
inadequate. To that task we now turn.
II
A
Our first inquiry is whether appellees have asserted interests
within the Fourteenth Amendment's protection of
Page 431 U. S. 839
"liberty" and "property."
Board of Regents v. Roth,
408 U. S. 564,
408 U. S. 571
(1972).
The appellees have not renewed in this Court their contention,
rejected by the District Court, 418 F. Supp. at 280-281, that the
realities of the foster care system in New York gave them a
justified expectation amounting to a "property" interest that their
status as foster parents would be continued. [
Footnote 42] Our inquiry is therefore narrowed
to the question whether their asserted interests are within the
"liberty" protected by the Fourteenth Amendment.
The appellees' basic contention is that, when a child has lived
in a foster home for a year or more, a psychological tie is created
between the child and the foster parents which constitutes the
foster family the true "psychological family" of the child.
See J. Goldstein, A. Freud, & A. Solnit, Beyond the
Best Interests of the Child (1973). That family, they argue, has a
"liberty interest" in its survival as a family protected by the
Fourteenth Amendment.
Cf. Moore v. East Cleveland, ante p.
431 U. S. 494.
Upon this premise, they conclude that the foster child cannot be
removed without a prior hearing satisfying due process. Appointed
counsel for the children, appellants in No. 76-5200, however,
disagrees, and has consistently argued that the foster parents have
no such liberty interest independent of the interests of the foster
children, and that the best interests of the children would not be
served by procedural protections beyond those already provided by
New York law. The intervening natural parents of children in foster
care, appellants in No. 76-5193, also oppose the foster parents,
arguing that recognition of the procedural right claimed would
undercut both the substantive family law of New York, which favors
the return of children to their natural parents as expeditiously as
possible,
see supra at
431 U. S.
823,
Page 431 U. S. 840
and their constitutionally protected right of family privacy, by
forcing them to submit to a hearing and defend their rights to
their children before the children could be returned to them.
The District Court did not reach appellees' contention "that the
foster home is entitled to the same constitutional deference as
that long granted to the more traditional biological family." 418
F. Supp. at 281. Rather than "reach[ing] out to decide such novel
questions," the court based its holding that "the pre-removal
procedures presently employed by the state are constitutionally
defective,"
id. at 282, not on the recognized liberty
interest in family privacy, but on an independent right of the
foster child
"to be heard before being 'condemned to suffer grievous loss,'
Joint Anti-Fascist Committee v. McGrath, 341 U. S.
123,
341 U. S. 168 . . . (1951)
(Frankfurter, J., concurring)."
Ibid.
The court apparently reached this conclusion by weighing the
"harmful consequences of a precipitous and perhaps improvident
decision to remove a child from his foster family,"
id. at
283, and concluding that this disruption of the stable
relationships needed by the child might constitute "grievous loss."
But if this was the reasoning applied by the District Court, it
must be rejected. [
Footnote
43]
Meachum v. Fano, 427 U. S. 215,
427 U. S. 224
(1976), is authority that such a finding does not, in and of
itself, implicate the due process guarantee. What was said in
Board of Regents v. Roth, supra at
408 U. S.
570-571, applies equally well here:
"The District Court decided that procedural due process
guarantees apply in this case by assessing and balancing
Page 431 U. S. 841
the weights of the particular interests involved. . . . [A]
weighing process has long been a part of any determination of the
form of hearing required in particular situations by
procedural due process. But, to determine whether due process
requirements apply in the first place, we must look not to the
'weight' but to the nature of the interest at stake. . . . We must
look to see if the interest is within the Fourteenth Amendment's
protection of liberty and property. [
Footnote 44] "
Page 431 U. S. 842
We therefore turn to appellees' assertion that they have a
constitutionally protected liberty interest -- in the words of the
District Court, a "right to familial privacy," 418 F. Supp. at 279
-- in the integrity of their family unit. [
Footnote 45] This assertion clearly presents
difficulties.
B
It is, of course, true that "freedom of personal choice in
matters of . . . family life is one of the liberties protected by
the Due Process Clause of the Fourteenth Amendment."
Cleveland
Board of Education v. LaFleur, 414 U.
S. 632,
414 U. S.
639-640 (1974). There does exist a "private realm of
family life which the state cannot enter,"
Prince v.
Massachusetts, 321 U. S. 158,
321 U. S. 166
(1944), that has been afforded both substantive [
Footnote 46] and procedural [
Footnote 47] protection. But is the
relation of foster parent to foster child sufficiently akin to the
concept of "family" recognized in our precedents to merit similar
protection? [
Footnote 48]
Although considerable difficulty has attended the task of defining
"family" for purposes of the Due Process
Page 431 U. S. 843
Clause,
see Moore v. East Cleveland, ante pp.
431 U. S. 494
(plurality opinion of POWELL, J.),
431 U. S. 531
(STEWART, J., dissenting),
431 U. S. 541 (WHITE, J., dissenting), we are not
without guides to some of the elements that define the concept of
"family" and contribute to its place in our society.
First, the usual understanding of "family" implies biological
relationships, and most decisions treating the relation between
parent and child have stressed this element.
Stanley v.
Illinois, 405 U. S. 645,
405 U. S. 651
(1972), for example, spoke of "[t]he rights to conceive and to
raise one's children" as essential rights, citing
Meyer v.
Nebraska, 262 U. S. 390
(1923), and
Skinner v. Oklahoma ex rel. Williamson,
316 U. S. 535
(1942). And
Prince v. Massachusetts stated:
"It is cardinal with us that the custody, care and nurture of
the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither
supply nor hinder."
321 U.S. at
321 U. S. 166.
[
Footnote 49]
A biological relationship is not present in the case of the
usual foster family. But biological relationships are not exclusive
determination of the existence of a family. [
Footnote 50] The basic foundation of the family
in our society, the marriage relationship, is of course not a
matter of blood relation. Yet its importance has been strongly
emphasized in our cases:
"We deal with a right of privacy older than the Bill of Rights
-- older than our political parties, older than our school system.
Marriage is a coming together for better
Page 431 U. S. 844
or for worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior
decisions."
Griswold v. Connecticut, 381 U.
S. 479,
381 U. S. 486
(1965).
See also Loving v. Virginia, 388 U. S.
1,
388 U. S. 12
(1967).
Thus the importance of the familial relationship, to the
individuals involved and to the society, stems from the emotional
attachments that derive from the intimacy of daily association, and
from the role it plays in "promot[ing] a way of life" through the
instruction of children,
Wisconsin v. Yoder, 406 U.
S. 205,
406 U. S.
231-233 (1972), as well as from the fact of blood
relationship. No one would seriously dispute that a deeply loving
and interdependent relationship between an adult and a child in his
or her care may exist even in the absence of blood relationship.
[
Footnote 51] At least where
a child has been placed in foster care as an infant, has never
known his natural parents, and has remained continuously for
several years in the care of the same foster parents, it is natural
that the foster family should hold the same place in the emotional
life of the foster child, and fulfill the same socializing
functions, as a natural family. [
Footnote 52] For this reason, we cannot dismiss the
foster family as a mere collection of unrelated individuals.
Page 431 U. S. 845
Cf. Village of Beile Terre v. Boraas, 416 U. S.
1 (1974).
But there are also important distinctions between the foster
family and the natural family. First, unlike the 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. The
individual's freedom to marry and reproduce is "older than the Bill
of Rights,"
Griswold v. Connecticut, supra at
381 U. S. 486.
Accordingly, unlike the property interests that are also protected
by the Fourteenth Amendment,
cf. Board of Regents v. Roth,
408 U.S. at
408 U. S. 577,
the liberty interest in family privacy has its source, and its
contours are ordinarily to be sought, not in state law, [
Footnote 53] but in intrinsic human
rights, as they have been understood in "this Nation's history and
tradition."
Moore v. East Cleveland, ante at
431 U. S. 503.
Cf. also Meachum v. Fano, 427 U.S. at
427 U. S. 230
(STEVENS, J., dissenting). Here, however, whatever 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. While the Court has recognized that liberty
interests may in some cases arise from positive law sources,
see, e.g., Wolff v. McDonnell, 418 U.
S. 539,
418 U. S. 557
(1974), in such a case, and particularly where, as here, the
claimed interest derives from a knowingly assumed contractual
relation with the State, it is appropriate to ascertain
Page 431 U. S. 846
from state law the expectations and entitlements of the parties.
In this case, the limited recognition accorded to the foster family
by the New York statutes and the contracts executed by the foster
parents argue against any but the most limited constitutional
"liberty" in the foster family.
A second consideration related to this is that ordinarily
procedural protection may be afforded to a liberty interest of one
person without derogating from the substantive liberty of another.
Here, however, such a tension is virtually unavoidable. Under New
York law, the natural parent of a foster child in voluntary
placement has an absolute right to the return of his child in the
absence of a court order obtainable only upon compliance with
rigorous substantive and procedural standards, which reflect the
constitutional protection accorded the natural family.
See
nn.
46 47 supra. Moreover, the natural parent
initially gave up his child to the State only on the express
understanding that the child would be returned in those
circumstances. These rights are difficult to reconcile with the
liberty interest in the foster family relationship claimed by
appellees. It is one thing to say that individuals may acquire a
liberty interest against arbitrary governmental interference in the
family-like associations into which they have freely entered, even
in the absence of biological connection or state law recognition of
the relationship. It is quite another to say that one may acquire
such an interest in the face of another's constitutionally
recognized liberty interest that derives from blood relationship,
state law sanction, and basic human right -- an interest the foster
parent has recognized by contract from the outset. [
Footnote 54] Whatever liberty interest
might otherwise exist in the
Page 431 U. S. 847
foster family as an institution, that interest must be
substantially attenuated where the proposed removal from the foster
family is to return the child to his natural parents.
As this discussion suggests, appellees' claim to a
constitutionally protected liberty interest raises complex and
novel questions. It is unnecessary for us to resolve those
questions definitively in this case, however, for, like the
District Court, we conclude that "narrower grounds exist to
support" our reversal. We are persuaded that, even on the
assumption that appellees have a protected "liberty interest," the
District Court erred in holding that the pre-removal procedures
presently employed by the State are constitutionally defective.
III
Where procedural due process must be afforded because a
"liberty" or "property" interest is within the Fourteenth
Amendment's protection, there must be determined "what process is
due" in the particular context. The District Court did not spell
out precisely what sort of pre-removal hearing would be necessary
to meet the constitutional standard, leaving to
"the various defendants -- state and local officials -- the
first opportunity to formulate procedures suitable to their own
professional needs and compatible with the principles set forth in
this opinion."
418 F. Supp. at 286. The court's opinion, however, would seem to
require, at a minimum, that in all cases in which removal of a
child within the certified class is contemplated, including the
situation where the removal is for the purpose of returning the
child to his natural parents, a hearing be held automatically,
regardless of whether or not the foster parents request a hearing;
[
Footnote 55] that the
hearing be
Page 431 U. S. 848
before an officer who has had no previous contact with the
decision to remove the child, and who has authority to order that
the child remain with the foster parents; and that the agency, the
foster parents, and the natural parents, as well as the child, if
he is able intelligently to express his true feelings, and an
independent representative of the child's interests, if he is not,
be represented and permitted to introduce relevant evidence.
It is true that,
"[b]efore a person is deprived of a protected interest, he must
be afforded opportunity for some kind of a hearing, 'except for
extraordinary situations where some valid governmental interest is
at stake that justifies postponing the hearing until after the
event.'"
Board of Regents v. Roth, 408 U.S. at
408 U. S. 570
n. 7, quoting
Boddie v. Connecticut, 401 U.
S. 371,
401 U. S. 379
(1971). But the hearing required is only one "appropriate to the
nature of the case."
Mullane v. Central Hanover Bank &
Trust Co., 339 U. S. 306,
339 U. S. 313
(1950).
See, e.g., Bell v. Burson, 402 U.
S. 535,
402 U. S. 542
(1971);
Goldberg v. Kelly, 397 U.
S. 254,
397 U. S. 263
(1970);
Cafeteria Workers v. McElroy, 367 U.
S. 886,
367 U. S. 895
(1961). "[D]ue process is flexible, and calls for such procedural
protections as the particular situation demands."
Morrissey v.
Brewer, 408 U. S. 471,
408 U. S. 481
(1972). Only last Term, the Court held that
"identification of the specific dictates of due process
generally requires consideration of three distinct factors: first,
the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional
Page 431 U. S. 849
or substitute procedural safeguards; and finally, the
Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail."
Mathews v. Eldridge, 424 U. S. 319,
424 U. S. 335
(1976). Consideration of the procedures employed by the State and
New York City in light of these three factors requires the
conclusion that those procedures satisfy constitutional
standards.
Turning first to the procedure applicable in New York City, SSC
Procedure No. 5,
see supra at
431 U. S. 831,
and n. 29, provides that before a child is removed from a foster
home for transfer to another foster home, the foster parents may
request an "independent review." The District Court's description
of this review is set out in the margin. [
Footnote 56] Such a procedure would appear to give a
more elaborate trial-type hearing to foster families than this
Court has found required in other contexts of administrative
determinations.
Cf. Goldberg v. Kelly, supra at
397 U. S.
266-271. The District Court found the procedure
inadequate on four grounds, none of which we find sufficient to
justify the holding that the procedure violates due process.
Page 431 U. S. 850
First, the court held that the "independent review"
administrative proceeding was insufficient because it was only
available on the request of the foster parents. In the view of the
District Court, the proceeding should be provided as a matter of
course, because the interests of the foster parents and those of
the child would not necessarily be coextensive, and it could not be
assumed that the foster parents would invoke the hearing procedure
in every case in which it was in the child's interest to have a
hearing. Since the child is unable to request a hearing on his own,
automatic review in every case is necessary. We disagree. As
previously noted, the constitutional liberty, if any, sought to be
protected by the New York procedures is a right of family privacy
or autonomy, and the basis for recognition of any such interest in
the foster family must be that close emotional ties analogous to
those between parent and child are established when a child resides
for a lengthy period with a foster family. If this is so,
necessarily we should expect that the foster parents will seek to
continue the relationship to preserve the stability of the family;
if they do not request a hearing, it is difficult to see what right
or interest of the foster child is protected by holding a hearing
to determine whether removal would unduly impair his emotional
attachments to a foster parent who does not care enough about the
child to contest the removal. [
Footnote 57] Thus, consideration of the interest to be
protected and the likelihood of erroneous deprivations, [
Footnote 58] the first two
Page 431 U. S. 851
factors identified in
Mathews v. Eldridge, supra, as
appropriate in determining the sufficiency of procedural
protections, do not support the District Court's imposition of this
additional requirement. Moreover, automatic provision of hearings
as required by the District Court would impose a substantial
additional administrative burden on the State. According to
appellant city officials, during the approximately two years
between the institution of SSC Procedure No. 5 in August, 1974, and
June, 1976, there were approximately 2,800 transfers per year in
the city, but only 26 foster parents requested hearings. Brief for
Appellants in No. 76-180, pp. 20-21. It is not at all clear what
would be gained by requiring full hearings in the more than 5,500
cases in which they were not requested.
Second, the District Court faulted the city procedure on the
ground that participation is limited to the foster parents and the
agency, and the natural parent and the child are not made parties
to the hearing. This is not fatal in light of the nature of the
alleged constitutional interests at stake. When the child's
transfer from one foster home to another is pending, the interest
arguably requiring protection is that of the foster family, not
that of the natural parents. Moreover, the natural parent can
generally add little to the accuracy of factfinding concerning the
wisdom of such a transfer, since the foster parents and the agency,
through its caseworkers, will usually be most knowledgeable about
conditions in the foster home. Of course, in those cases where the
natural parent does have a special interest in the proposed
transfer
Page 431 U. S. 852
or particular information that would assist the factfinder,
nothing in the city's procedure prevents any party from securing
his testimony.
Much the same can be said in response to the District Court's
statement:
"[I]t may be advisable, under certain circumstances, for the
agency to appoint an adult representative better to articulate the
interests of the child. In making this determination, the agency
should carefully consider the child's age, sophistication and
ability effectively to communicate his own true feelings."
418 F. Supp. at 285-286. But nothing in the New York City
procedure prevents consultation of the child's wishes, directly or
through an adult intermediary. We assume, moreover, that some such
consultation would be among the first steps that a rational
factfinder, inquiring into the child's best interests, would
pursue. Such consultation, however, does not require that the child
or an appointed representative must be a party with full adversary
powers in all pre-removal hearings. [
Footnote 59]
Page 431 U. S. 853
The other two defects in the city procedure found by the
District Court must also be rejected. One is that the procedure
does not extend to the removal of a child from foster care to be
returned to his natural parent. But as we have already held,
whatever liberty interest may be argued to exist in the foster
family is significantly weaker in the case of removals preceding
return to the natural parent, and the balance of due process
interests must accordingly be different. If the city procedure is
adequate where it is applicable, it is no criticism of the
procedure that it does not apply in other situations where
different interests are at stake. Similarly, the District Court
pointed out that the New York City procedure coincided with the
informal "conference" and post-removal hearings provided as a
matter of state law. This overlap in procedures may be unnecessary
or even to some degree unwise,
see id. at 285, but a State
does not violate the Due Process Clause by providing alternative or
additional procedures beyond what the Constitution requires.
Outside New York City, where only the statewide procedures
apply, foster parents are provided not only with the procedures of
a pre-removal conference and post-removal hearing provided by 18
N.Y.C.R.R. § 450.10 (1976) and Soc.Serv.Law § 400 (McKinney 1976),
see supra at
431 U. S.
829-830, but also with the pre-removal judicial hearing
available on request to foster parents who have in their care
children who have been in foster care for 18 months or more,
Soc.Serv.Law § 392. As observed
supra at
431 U. S. 832,
and n. 32, a foster parent in such case may obtain an order that
the child remain in his care.
The District Court found three defects in this full judicial
process. First, a § 392 proceeding is available only to those
foster children who have been in foster care for 18 months or more.
The class certified by the court was broader, including
Page 431 U. S. 854
children who had been in the care of the same foster parents for
more than one year. Thus, not all class members had access to the §
392 remedy. [
Footnote 60] We
do not think tat the 18-month limitation on § 392 actions renders
the New York scheme constitutionally inadequate. The assumed
liberty interest to be protected in this case is one rooted in the
emotional attachments that develop over time between a child and
the adults who care for him. But there is no reason to assume that
those attachments ripen at less than 18 months, or indeed at any
precise point. Indeed, testimony in the record,
see App.
177a, 204a, as well as material in published psychological texts,
see, e.g., J. Goldstein, A. Freud, & A. Solnit, Beyond
the Best Interests of the Child 442, 49 (1973), suggests that the
amount of time necessary for the development of the sort of tie
appellees seek to protect varies considerably depending on the age
and previous attachments of the child. In a matter of such
imprecision and delicacy, we see no justification for the District
Court's substitution of its view of the appropriate cutoff date for
that chosen by the New York Legislature, given that any line is
likely to be somewhat arbitrary and fail to protect some families
where relationships have developed quickly while protecting others
where no such bonds have formed. If New York sees 18 months, rather
than 12, as the time at which temporary foster care begins to turn
into a more permanent and family-like setting requiring procedural
protection and/or judicial inquiry into the propriety of continuing
foster care, it would take far more than this record
Page 431 U. S. 855
provides to justify a finding of constitutional infirmity in New
York's choice.
The District Court's other two findings of infirmity in the 392
procedure have already been considered and held to be without
merit. The District Court disputed defendants' reading of § 392 as
permitting an order requiring the leaving of the foster child in
the same foster home. The plain words of the statute and the weight
of New York judicial interpretation do not support the court.
See supra at
431 U. S. 832,
and n. 32. The District Court also faulted § 392, as it did the New
York City procedure, in not providing an automatic hearing in every
case even in cases where foster parents chose not to seek one. Our
holding sustaining the adequacy of the city procedure,
supra at
431 U. S.
850-851, applies in this context as well. [
Footnote 61]
Finally, the § 392 hearing is available to foster parents, both
in and outside New York City, even where the removal sought is for
the purpose of returning the child to his natural parents. Since
this remedy provides a sufficient constitutional pre-removal
hearing to protect whatever liberty interest might exist in the
continued existence of the foster family when the State seeks to
transfer the child to another foster home,
a fortiori the
procedure is adequate to protect the lesser interest of the foster
family in remaining together at the expense of the disruption of
the natural family.
We deal here with issues of unusual delicacy, in an area where
professional judgments regarding desirable procedures are
constantly and rapidly changing. In such a context, restraint is
appropriate on the part of courts called upon to
Page 431 U. S. 856
adjudicate whether a particular procedural scheme is adequate
under the Constitution. Since we hold that the procedures provided
by New York State in § 392 and by New York City's SSC Procedure No.
5 are adequate to protect whatever liberty interests appellees may
have, the judgment of the District Court is
Reversed.
* Together with No. 76-183,
Shapiro, Executive Director, New
York State Board of Social Welfare, et al. v. Organization of
Foster Families for Equality & Reform et al.; No. 76-5193,
Rodriguez et al. v. Organization of Foster Families for
Equality & Reform et al.; and No. 76-5200,
Gandy et
al. v. Organization of Foster Families for Equality & Reform et
al., also on appeal from the same court.
[
Footnote 1]
Appellee Madeleine Smith is the foster parent with whom Eric and
Danielle Gandy have been placed since 1970. The Gandy children, who
are now 12 and 9 years old, respectively, were voluntarily placed
in foster care by their natural mother in 1968, and have had no
contact with her at least since being placed with Mrs. Smith. The
foster care agency has sought to remove the children from Mrs.
Smith's care because her arthritis, in the agency's judgment, makes
it difficult for her to continue to provide adequate care. A foster
care review proceeding under N.Y.Soc.Serv.Law § 392 (McKinney
1976),
see infra at
431 U. S.
831-832, resulted in an order, subsequent to the
decision of the District Court, directing that foster care be
continued and apparently contemplating, though not specifically
ordering, that the children will remain in Mrs. Smith's care.
In re Gandy, Nos. K-2663/74S, K-2664/74S (Fam.Ct.N.Y.Cty.,
Nov. 22, 1976).
Appellees Ralph and Christiane Goldberg were the foster parents
of Rafael Serrano, now 14. His parents placed him in foster care
voluntarily in 1969 after an abuse complaint was filed against
them. It is alleged that the agency supervising the placement had
informally indicated to Mr. and Mrs. Goldberg that it intended to
transfer Rafael to the home of his aunt in contemplation of
permanent placement. This effort has apparently failed. A petition
for foster care review under Soc.Serv.Law § 392 filed by the agency
alleges that the Goldbergs are now separated, Mrs. Goldberg having
moved out of the house, taking her own child but leaving Rafael.
The child is now in a residential treatment center, where Mr.
Goldberg continues to visit him. App. to Reply Brief for Appellants
in No. 76-180.
Appellees Walter and Dorothy Lhotan were foster parents of the
four Wallace sisters, who were voluntarily placed in foster care by
their mother in 1970. The two older girls were placed with the
Lhotans in that year, their two younger sisters in 1972. In June
1974, the Lhotans were informed that the agency had decided to
return the two younger girls to their mother and transfer the two
older girls to another foster home. The agency apparently felt that
the Lhotans were too emotionally involved with the girls, and were
damaging the agency's efforts to prepare them to return to their
mother. The state courts have ordered that all the Wallace children
be returned to their mother,
State ex rel. Wallace v.
Lhotan, 51 App.Div.2d 252, 380 N.Y.S.2d 250,
appeal
dismissed and leave to appeal denied, 39 N.Y.2d 705 (1976). We
are told that the children have been returned and are adjusting
successfully. Reply Brief for Appellants in No. 76-5200, pp.
1a-10a.
[
Footnote 2]
Defendants in the District Court included various' New York
State and New York City child welfare officials, and officials of a
voluntary child care agency and the Nassau County Department of
Social Services. The latter two defendants have not appealed.
[
Footnote 3]
New York Soc.Serv.Law § 383(2) (McKinney 1976) provides:
"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."
New York Soc.Serv.Law § 400 (McKinney 1976) provides:
"Removal of children"
"1. When any child shall have been placed in an institution or
in a family home by a commissioner of public welfare or a city
public welfare officer, the commissioner or city public welfare
officer may remove such child from such institution or family home
and make such disposition of such child as is provided by law."
"2. Any person aggrieved by such decision of the commissioner of
public welfare or city welfare officer may appeal to the
department, which upon receipt of the appeal shall review the case,
shall give the person making the appeal an opportunity for a fair
hearing thereon and within thirty days render its decision. The
department may also, on its own motions, review any such decision
made by the public welfare official. The department may make such
additional investigation as it may deem necessary. All decisions of
the department shall be binding upon the public welfare district
involved and shall be complied with by the public welfare officials
thereof."
Title 18 N.Y.C.R.R. § 450.14, which was renumbered § 450.10 as
of September 18, 1974, provides:
"Removal from foster family care. (a) Whenever a social services
official of another authorized agency acting on his behalf proposes
to remove a child in foster family care from the foster family
home, he or such other authorized agency, as may be appropriate,
shall notify the foster family parents, in writing of the intention
to remove such child at least 10 days prior to the proposed
effective date of such removal, except where the health or safety
of the child requires that he be removed immediately from the
foster family home. Such notification shall further advise the
foster family parents that they may request a conference with the
social services official or a designated employee of his social
services department at which time they may appear, with or without
a representative to have the proposed action reviewed, be advised
of the reasons therefor and be afforded an opportunity to submit
reasons why the child should not be removed. Each social services
official shall instruct and require any authorized agency acting on
his behalf to furnish notice in accordance with the provisions of
this section. Foster parents who do not object to the removal of
the child from their home may waive in writing their right to the
10 day notice, provided, however, that such waiver shall not be
executed prior to the social services official's determination to
remove the child from the foster home and notifying the foster
parents thereof."
"(b) Upon the receipt of a request for such conference, the
social services official shall set a time and place for such
conference to be held within 10 days of receipt of such request and
shall send written notice of such conference to the foster family
parents and their representative, if any, and to the authorized
agency, if any, at least five days prior t the date of such
conference."
"(c) The social services official shall render and issue his
decision as expeditiously as possible but not later than five days
after the conference and shall send a written notice of his
decision to the foster family parents and their representative, if
any, and to the authorized agency, if any. Such decision shall
advise the foster family parents of their right to appeal to the
department and request a fair hearing in accordance with section
400 of the Social Services Law."
"(d) In the event there is a request for a conference, the child
shall not be removed from the foster family home until at least
three days after the notice of decision is sent, or prior to the
proposed effective date of removal, whichever occurs later."
"(e) In any agreement for foster care between a social services
official or another authorized agency acting on his behalf and
foster parents, there shall be contained therein a statement of a
foster parent's rights provided under this section."
[
Footnote 4]
Joint App. to Jurisdictional Statements 54a.
See
Organization of Foster Families v. Dumpson, 418 F.
Supp. 277, 278 (SDNY 1976).
[
Footnote 5]
Intervenor Naomi Rodriguez, who is blind, placed her newborn son
Edwin in foster care in 1973 because of marital difficulties. When
Mrs. Rodriguez separated from her husband three months later, she
sought return of her child. Her efforts over the next nine months
to obtain return of the child were resisted by the agency,
apparently because it felt her handicap prevented her from
providing adequate care. Eventually, she sought return of her child
in the state courts, and finally prevailed, three years after she
first sought return of the child.
Rodriguez v. Dumpson, 52
App Div.2d 299, 383 N.Y.S.2d 833 (1976). The other named
intervenors describe similar instances of voluntary placements
during family emergencies followed by lengthy and frustrating
attempts to get their children back.
[
Footnote 6]
The intervening natural parents argue in this Court that the
District Court erred in not permitting them to raise certain
defenses. In view of our disposition of the case, we find it
unnecessary to reach this issue.
[
Footnote 7]
In an opinion handed down at the same time as its decision on
the merits, the District Court granted class certification to
appellee foster parents, the named children, and the intervening
natural parents. Joint App. to Jurisdictional Statements 42a.
See Organization of Foster Families v. Dumpson, supra at
278 n. 3. Appellants in No. 76-5193 challenge the class
certification of the children. We perceive no error.
[
Footnote 8]
The term "foster care" is often used more generally to apply to
any type of care that substitutes others for the natural parent in
the parental role, including group homes, adoptive homes, and
institutions, as well as foster family homes. A. Kadushin, Child
Welfare Services 355 (1967) (hereafter Kadushin).
Cf.
Mnookin, Foster Care -- In Whose Best Interests?, 43 Harv.Educ.Rev.
599, 600 (1973) (hereafter Mnookin I). Since this case is only
concerned with children in foster family homes, the term will
generally be used here in the more restricted sense defined in the
text.
[
Footnote 9]
The record indicates that as many as 80% of the children in
foster care in New York City are voluntarily placed. Deposition of
Prof. David Fanshel, App. 178a.
But cf. Child Welfare
Information Services, Characteristics of Children in Foster Care,
New York City Reports, Table No. 11 (Dec. 31, 1976). Other studies
from New York and elsewhere variously estimate the percentage of
voluntary placements between 50% and 90%.
See, e.g.,
Mnookin I 601; Areen, Intervention Between Parent and Child: A
Reappraisal of the State's Role in Child Neglect and Abuse Cases,
63 Geo.L.J. 887, 921-922, and n. 185 (1975); Levine,
Caveat
Parens: A Demystification of the Child Protection System, 35
U. Pitt.L.Rev. 1, 29 (1973).
[
Footnote 10]
Experienced commentators have suggested that typical parents in
this situation might be
"[a] divorced parent in a financial bind, an unwed adolescent
mother still too immature to rear a child, or a welfare mother
confronted with hospitalization, and therefore temporarily
incapable of caring for her child."
Weiss & Chase, The Case for Repeal of Section 383 of the New
York Social Services Law, 4 Colum. Human Rights L.Rev. 325, 326
(1972). A leading text on child care services suggests that
"[family] disruption, marginal economic circumstances, and poor
health" are principal factors leading to placement of children in
foster care. Kadushin 366. Other studies suggest, however, that
neglect, abuse, abandonment and exploitation of children, which
presumably account for most of the children who enter foster care
by court order,
see infra at
431 U. S. 828,
are also involved in many cases of voluntary placement.
See
infra at
431 U. S. 834;
Kadushin 366.
[
Footnote 11]
"Authorized agency" is defined in N.Y.Soc.Serv.Law § 371(10)
(McKinney 1976), and
"includes any local public welfare children's bureau, such as
the defendants New York City Bureau of Child Welfare and Nassau
County Children's Bureau, and any voluntary child care agency under
the supervision of the New York State Board of Social Welfare, such
as the defendant Catholic Guardian Society of New York."
418 F. Supp. at 278 n. 5.
An
amicus curiae brief states that, in New York City,
85% of the children in foster care are placed with voluntary child
care agencies licensed by the State, while most children in foster
care outside New York City are placed directly with the local
Department of Social Services. Brief for Legal Aid Society of City
of New York, Juvenile Rights Division, as
Amicus Curiae 14
n. 22.
[
Footnote 12]
Before enactment of § 384-a in 1975, the natural parent who had
voluntarily placed a child in foster care had no automatic right to
return of the child. If the agency refused consent for the return
of the child to the parent, the parent's only remedy was to seek a
writ of habeas corpus. N.Y.Civ.Prac.Law § 7001
et seq.
(McKinney 1963); N.Y.Family Court Act § 651 (McKinney 1975). When
the parent did not invoke this remedy, the child would remain in
foster care.
See Weiss & Chase,
supra,
n 10, at 326-327,
333-334.
[
Footnote 13]
The record indicates that at the end of 1973, of 48,812 children
in foster care under the supervision of the New York State Board of
Social Welfare and the New York State Department of Social
Services, 35,287 (about 72%) were placed in foster family homes,
and the rest in institutions or other facilities. App. 117a.
[
Footnote 14]
Such contractual provisions are apparently also characteristic
of foster care arrangements in other States.
See, e.g.,
Mnookin I 610.
[
Footnote 15]
See, e.g., the case of appellees Ralph and Christiane
Goldberg,
n 1,
supra.
Evidence in the record indicates that as many as one-third of all
transfers within the foster care system are at the request of the
foster parents. Affidavit of Carol J. Parry, App. 90a.
[
Footnote 16]
The resulting confusion not only produces anomalous legal
relationships, but also affects the child's emotional status. The
foster child's loyalties, emotional involvements, and
responsibilities are often divided among three adult authority
figures -- the natural parents, the foster parent, and the social
worker representing the foster care agency.
See, e.g.,
Kadushin 387-389;
see also Mnookin I 624; Wald, State
Intervention on Behalf of "Neglected" Children: Standards for
Removal of Children from Their Homes, Monitoring the Status of
Children in Foster Care, and Termination of Parental Rights, 28
Stan.L.Rev. 623, 645 (1976) (hereafter Wald); E. Weinstein, The
Self-Image of the Foster Child 15 (1960).
[
Footnote 17]
"Legal custody is concerned with the rights and duties of the
person (usually the parent) having custody to provide for the
child's daily needs -- to feed him, clothe him, provide shelter,
put him to bed, send him to school, see that he washes his face and
brushes his teeth."
Kadushin 354-355. Obviously, performance of these functions
directly by a state agency is impractical.
[
Footnote 18]
"The agency sets limits and advances directives as to how the
foster parents are to behave toward the child -- a situation not
normally encountered by natural parents. The shared control and
responsibility for the child is clearly set forth in the
instruction pamphlets issued to foster parents."
Id. at 394. Agencies frequently prohibit corporal
punishment; require that children over a certain age be given an
allowance; forbid changes in the child's sleeping arrangements or
vacations out of State without agency approval; require the foster
parent to discuss the child's behavioral problems with the agency.
Id. at 394-395. Furthermore, since the cost of supporting
the child is borne by the agency, the responsibility, as well as
the authority, of the foster parent is shared with the agency.
Ibid.
[
Footnote 19]
Voluntary placement in foster care is entirely distinct from the
"surrender" of both "the guardianship of the person and the
custody" of a child under Soc.Serv.Law § 384, which frees the child
for adoption. § 384(2).
"Adoption is the legal proceeding whereby a person takes another
person into the legal relation of child and thereby acquires the
rights and incurs the responsibilities of parent in respect of such
other person."
N.Y.Dom.Rel.Law § 110 (McKinney 1964). A child may also be freed
for adoption by abandonment or consent. § 111 (McKinney Supp.
1976-1977); Soc.Serv.Law § 384-b.
[
Footnote 20]
"[A]lthough the agency usually obtains legal custody in foster
family care, the child still legally 'belongs' to the parent and
the parent retains guardianship. This means that, for some crucial
aspects of the child's life, the agency has no authority to act.
Only the parent can consent to surgery for the child, or consent to
his marriage, or permit his enlistment in the armed forces, or
represent him at law."
Kadushin 355.
But see Soc.Serv.Law § 383-b.
[
Footnote 21]
The agreement transferring custody to the agency must inform the
parent of these obligations. §§ 384-a(2)(c)(iii), (iv).
[
Footnote 22]
The Family Court is also empowered permanently to sever the ties
of parent and child if the parent fails to maintain contact with
the child while in foster care. § 384-b(4)-(7).
See supra
at
431 U. S. 828,
and n. 21.
[
Footnote 23]
The record shows that, in 1973-1974, approximately 80% of the
children removed from foster homes in New York State after living
in the foster home for one year or more were transferred to another
foster placement. Thirteen percent were returned to the biological
parents, and 7% were adopted. Tr. of Oral Arg. 34; Brief for
Appellees 20.
[
Footnote 24]
This regulation, set out in full in
n 3,
supra, was formerly numbered 18 N.Y.C.R.R. §
450.14, and is referred to by that number in the opinion of the
District Court.
[
Footnote 25]
The State argues that, while § 450.10 provides minimum
requirements for notice to the foster family of the agency's
intention to remove the child and the reasons for that decision,
the close contact between the agency and the foster parent insures
that, in most circumstances, the foster parent is informed well in
advance of any projected removal. In fact, 18 N.Y.C.R.R. § 606.16
(1976) requires the agency in some circumstances to begin for the
discharge of the children from foster care, in cooperation with all
parties involved, as early as six months in advance. Brief for
Appellants in No. 76-183, pp. 21-23.
[
Footnote 26]
This statute is set out in full in
n 3,
supra.
[
Footnote 27]
A court, however, apparently may grant a stay in some
circumstances.
See, e.g., In re W., 77 Misc.2d 374, 377,
355 N.Y.S.2d 245, 249 (1974).
[
Footnote 28]
There is some dispute whether the procedures set out in 18
N.Y.C.R.R. § 450.10 and Soc.Serv.Law § 400 apply in the case of a
foster child being removed from his foster home to be returned to
his natural parents. Application of these procedures to children
who have been placed voluntarily, for example, arguably conflicts
with the requirement of § 384-a(2)(a) that children in that
situation be returned to the natural parent as provided in the
placement agreement or within 20 days of demand. Similarly, if the
child has been ordered returned by a court, it is unclear what
purpose could be served by an administrative conference or hearing
on the correctness of the decision to remove the child from the
foster home. Moreover, since the § 400 hearing takes place after
removal of the child from the foster home, the hearing would have
no purpose if the child has been returned to its parents, since the
agency apparently has no authority to take the child back from its
parents against their will without court intervention.
Nevertheless, nothing in either the statute or the regulations
limits the availability of these procedures to transfers within the
foster care system. Each refers to the decision to remove a child
from the foster family home, and thus, on its face, each would seem
to cover removal for the purpose of returning the child to its
parents. Furthermore, it is undisputed on this record that the
actual administrative practice in New York is to provide the
conference and hearing in all cases where they are requested,
regardless of the destination of the child. In the absence of
authoritative state court interpretation to the contrary, we
therefore assume that these procedures are available whenever a
child is removed from a foster family home.
[
Footnote 29]
SSC Procedure No. 5 is set out in full in App. to Brief for
Appellants in No. 76-5193, pp. 54a-65a, and in Jurisdictional
Statement of New York City Appellants A8.
[
Footnote 30]
The agency is required to initiate such a review when a child
has remained in foster care for 18 months, § 392(2)(a), and if the
child remains in foster care, the court
"shall rehear the matter whenever it deems necessary or
desirable, or upon petition by any party entitled to notice in
proceedings under this section, but at least every twenty-four
months."
§ 392(10).
[
Footnote 31]
If the agency already has guardianship as well as custody of the
foster child, as in the case of a surrender or previous court order
terminating the guardianship of the natural parent for neglect,
see nn.
19 22 supra, the court may
simply order that the child be placed for adoption, § 392(7)(d); if
the agency does not have guardianship, as in the case of children
placed in foster care temporarily either by court order or by
voluntary placement, the court may direct the agency to initiate a
proceeding to free the child for adoption under §§ 384-b,
392(7)(c).
[
Footnote 32]
Both the District Court, 418 F. Supp. at 284, and the appellees,
Brief for Appellees 70-72, argue that § 392 does not permit the
court to enter such an order, citing
In re W., supra at
376, 355 N.Y.S.2d at 248. But in that very case, the court ordered
that the child remain with the foster family pending exhaustion of
the remedies provided by § 400, thus essentially converting that
hearing into a pre-removal remedy.
See n 27,
supra. Moreover, other
courts have granted such relief.
In re S., 74 Misc.2d 935,
347 N.Y.S.2d 274 (1973).
See also In re Denlow, 87 Misc.2d
410, 384 N.Y.S.2d 621 (1976);
In re H., 80 Misc.2d 593,
363 N.Y.S.2d 73 (1974). This interpretation of the power of the
court seems to be fully supported by the broad language of §
392(7).
[
Footnote 33]
For further comment on this point,
see Jenkins, Child
Welfare as a Class System, in Children and Decent People 3, 11-12
(A. Schorr ed.1974); Rein, Nutt, & Weiss, Foster Family Care:
Myth and Reality, in Children and Decent People 24, 229 (A. Schorr
ed.1974) (hereafter Rein, Nutt, & Weiss).
[
Footnote 34]
See, e.g., the case of Rafael Serrano, the foster child
of appellees Ralph and Christiane Goldberg,
n 1,
supra.
[
Footnote 35]
Other factors alleged to bias agencies in favor of retention in
foster care are the lack of sufficient staff to provide social work
service needed by the natural parents to resolve their problems and
prepare for return of the child; policies of many agencies to
discourage involvement of the natural parents in the care of the
child while in foster care; and systems of foster care funding that
encourage agencies to keep the child in foster care. Wald 677-679.
See also E. Sherman, R. Neuman, & A. Shyne, Children
Adrift in Foster Care: A Study of Alternative Approaches 5
(1973).
[
Footnote 36]
For an example of this problem,
see the case of
intervenor Naomi Rodriguez,
n
5,
supra.
Recent legislative reforms in New York that decrease agencies'
discretion to retain a child in foster care are apparently designed
to meet these objections. For example, Soc.Serv.Law § 38a(2)(a)
gives parents of children in voluntary foster placement greater
rights to the return of their children. Since the statute permits
placement agreements of varied terms, however, and since many
children in foster care are not voluntarily placed, there may still
be situations in which the agency has considerable discretion in
deciding whether or not to return the child to the natural parent.
The periodic court review provided by § 392 is also intended in
part to meet these objections, but critics of foster care have
argued that given the heavy caseloads, such review may often be
perfunctory. Mnookin, Child Custody Adjudication: Judicial
Functions in the Face of Indeterminacy, 39(3) Law & Contemp.
Probs. 226, 274-275 (1975) (hereafter Mnookin II). Moreover, judges
too may find it difficult, in utilizing vague standards like "the
best interests of the child," to avoid decisions resting on
subjective values.
[
Footnote 37]
The New York Legislature has recognized the merit of this
criticism. Social Serv. Law § 38b(1)(b), adopted in 1976,
states:
"The legislature further finds that many children who have been
placed in foster care experience unnecessarily protracted stays in
such care without being adopted or returned to their parents or
other custodians. Such unnecessary stays may deprive these children
of positive, nurturing family relationships and have deleterious
effects on their development into responsible, productive
citizens."
[
Footnote 38]
In New York City, 23.1% of foster children enter foster care
when under one year of age, and 43% at age three or under. Child
Welfare Information Services,
supra, n 9, Table No. 5.
Cf. E. Sherman, R.
Neuman, & A. Shyne,
supra at 24 (18% of foster care
children in Rhode Island study were under one year of age when they
entered foster care, and 43% were under the age of three).
[
Footnote 39]
One study of parental contacts in New York City found that 57.4%
of all foster children had had no contact with their natural
parents for the previous six months. Child Welfare Information
Services, Parental Visiting Information, New York City Reports,
Table No. 1 (Dec. 31, 1976).
[
Footnote 40]
The development of such ties points up an intrinsic ambiguity of
foster care that is central to this case. The warmer and more
homelike environment of foster care is intended to be its main
advantage over institutional child care, yet, because in theory
foster care is intended to be only temporary, foster parents are
urged not be become too attached to the children in their care.
Mnookin I 613. Indeed, the New York courts have upheld removal from
a foster home for the very reason that the foster parents had
become too emotionally involved with the child.
In re Jewish
Child Care Assn. (Sanders), 5 N.Y.2d 222, 156 N.E.2d 700
(1959).
See also the case of the Lhotans, named appellees
in this case,
n 1,
supra.
On the other hand, too warm a relation between foster parent and
foster child is not the only possible problem in foster care.
Qualified foster parents are hard to find, Kadushin 367-372,
415-417, and very little training is provided to equip them to
handle the often complicated demands of their role, Rein, Nutt,
& Weiss 445; it is thus sometimes possible that foster homes
may provide inadequate care. Indeed, situations in which foster
children were mistreated or abused have been reported. Wald 645.
And the social work services that are supposed to be delivered to
both the natural and foster families are often limited, due to the
heavy caseloads of the agencies. Kadushin 413; Mnookin II 274.
Given these problems, and given that the very fact of removal from
even an inadequate natural family is often traumatic for the
child,Wald 644-645, it is not surprising that one commentator has
found "rather persuasive, if still incomplete, evidence that,
throughout the United States, children in foster care are
experiencing high rates of psychiatric disturbance." Eisenberg, The
Sins of the Fathers: Urban Decay and Social Pathology, 32 Am.J. of
Orthopsychiatry 5, 14 (1962).
[
Footnote 41]
It must be noted, however, that both appellee foster parents and
intervening natural parents present incomplete pictures of the
foster care system. Although seeking relief applicable to all
removal situations, the foster parents focus on intra-foster care
transfers, portraying a foster care system in which children
neglected by their parents and condemned to a permanent limbo of
foster care are arbitrarily shunted about by social workers
whenever they become attached to a foster home. The natural
parents, who focus on foster children being returned to their
parents, portray a system under which poor and minority parents,
deprived of their children under hard necessity and bureaucratic
pressures, are obstructed in their efforts to maintain
relationships with their children and ultimately to regain custody,
by hostile agencies and meddling foster parents. As the experiences
of the named parties to this suit, nn.
1 5 supra,
and the critical studies of foster care cited
supra at
431 U. S.
833-838, demonstrate, there are elements of truth in
both pictures. But neither represents the whole truth about the
system.
[
Footnote 42]
Appellees have also apparently abandoned their claim that the
challenged procedures violate the Equal Protection Clause of the
Fourteenth Amendment.
[
Footnote 43]
The dissenting judge argued that the court's underlying premise
was a holding
"over the objection of the representative of the children . . .
that the foster children have a 'liberty' interest in their
relationship with the foster parents."
418 F. Supp. at 288. If this was in fact the reasoning of the
District Court, we do not see how it differs from a holding that
the foster family relationship is entitled to privacy protection
analogous to the natural family -- the issue the District Court
purported not to reach.
[
Footnote 44]
Appellants argue, with the dissenting judge below,
id.
at 288, that in any event appellee foster parents have no standing
to rely upon a supposed right of the foster children to avoid
"grievous loss," because the foster children are independently
represented by court-appointed counsel, who has consistently
opposed the relief requested by appellees, and denied that the
children have any such right.
This argument misunderstands the peculiar circumstances of this
lawsuit. Ordinarily, it is true, a party would not have standing to
assert the rights of another, himself a party in the litigation;
the third party himself can decide how best to protect his
interests. But children usually lack the capacity to make that sort
of decision, and thus their interest is ordinarily represented in
litigation by parents or guardians. In this case, however, the
State, the natural parents, and the foster parents, all of whom
share some portion of the responsibility for guardianship of the
child,
see supra at
431 U. S.
826-828, and nn. 16-18, are parties, and all contend
that the position they advocate is most in accord with the rights
and interests of the children. In this situation, the District
Court properly appointed independent counsel to represent the
children, so that the court could have the benefit of an
independent advocate for the welfare of the children, unprejudiced
by the possibly conflicting interests and desires of the other
parties. It does not follow, however, that that independent
counsel, who is not a guardian
ad litem of the children,
is solely authorized to determine the children's best interest.
No party denies, or could deny, that there is an Art. III "case
or controversy" between the foster parents and the defendant state
officials concerning the validity of the removal procedures.
Accordingly, their standing to raise the rights of the children in
their attack on those procedures is a prudential question.
Craig v. Boren, 429 U. S. 190,
429 U. S. 193
(1976). We believe it would be most imprudent to leave entirely to
court-appointed counsel the choices that neither the named foster
children nor the class they represent are capable of making for
themselves, especially in litigation in which all parties have
sufficient attributes of guardianship that their views on the
rights of the children should at least be heard.
[
Footnote 45]
There can be, of course, no doubt of appellees' standing to
assert this interest, which, to whatever extent it exists, belongs
to the foster parents as much as to the foster children.
[
Footnote 46]
Moore v. East Cleveland, ante p.
431 U. S. 494
(plurality opinion);
Roe v. Wade, 410 U.
S. 113,
410 U. S.
152-153 (1973);
Wisconsin v. Yoder,
406 U. S. 205,
406 U. S.
231-233 (1972);
Griswold v. Connecticut,
381 U. S. 479
(1965);
id. at
381 U. S.
495-496 (Goldberg, J., concurring);
id. at
381 U. S.
502-503 (WHITE, J., concurring in judgment);
Pierce
v. Society of Sisters, 268 U. S. 510,
268 U. S.
534-535 (1925);
Meyer v. Nebraska, 262 U.
S. 390,
262 U. S.
399-401 (1923).
[
Footnote 47]
See, e.g., Stanley v. Illinois, 405 U.
S. 645,
405 U. S. 651
(1972);
Cleveland Board of Education v. LaFleur,
414 U. S. 632
(1974);
Armstrong v. Manzo, 380 U.
S. 545 (1965);
May v. Anderson, 345 U.
S. 528 (1953).
[
Footnote 48]
Of course, recognition of a liberty interest in foster families
for purposes of the procedural protections of the Due Process
Clause would not necessarily require that foster families be
treated as fully equivalent to biological families for purposes of
substantive due process review.
Cf. Moore v. East Cleveland,
ante at
431 U. S.
546-547 (WHITE, J., dissenting).
[
Footnote 49]
The scope of these rights extends beyond natural parents. The
"parent" in
Prince itself, for example, was the child's
aunt and legal custodian. 321 U.S. at
321 U. S. 159.
And see Moore v. East Cleveland, ante at
431 U. S.
504-506 (plurality opinion),
431 U. S.
507-511 (BRENNAN, J., concurring).
[
Footnote 50]
Some Justices of the Court have suggested that, at least where
the substantive protection of the Due Process Clause is involved,
biological relationship alone is not sufficient to create a
constitutionally protected "family."
Moore v. East Cleveland,
ante at
431 U. S.
536-540 (STEWART, J., dissenting)
431 U. S. 549
(WHITE, J., dissenting).
[
Footnote 51]
Adoption, for example, is recognized as the legal equivalent of
biological parenthood.
See, e.g., N.Y.Dom.Rel.Law § 110,
supra, n19.
[
Footnote 52]
The briefs dispute at some length the validity of the
"psychological parent" theory propounded in J. Goldstein, A. Freud
& A. Solnit, Beyond the Best Interests of the Child (1973).
That book, on which appellee foster parents relied to some extent
in the District Court, is indeed controversial.
See, e.g.,
Strauss & Strauss, Book Review, 74 Colum.L.Rev. 996 (1974);
Kadushin, Beyond the Best Interests of the Child: An Essay Review,
48 Soc.Serv.Rev. 508, 512 (1974). But this case turns not on the
disputed validity of any particular psychological theory, but on
the legal consequences of the undisputed fact that the emotional
ties between foster parent and foster child are in many cases quite
close, and undoubtedly in some as close as those existing in
biological families.
[
Footnote 53]
The legal status of families has never been regarded as
controlling: "Nor has the [Constitution] refused to recognize those
family relationships unlegitimized by a marriage ceremony."
Stanley v. Illinois, 405 U.S. at
405 U. S.
651.
[
Footnote 54]
The New York Court of Appeals has as a matter of state law
"[p]articularly rejected . . . the notion . . . that third-party
custodians may acquire some sort of squatter's rights in another's
child."
Bennett v. Jeffreys, 40 N.Y.2d 543, 552 n. 2, 356
N.E.2d 277, 285 n. 2 (1976).
[
Footnote 55]
The judgment of the District Court contains a provision
(
see Jurisdictional Statements, Joint App. 36a, 37a), not
suggested in the opinion, that "hearings need not be held when the
foster child is to be removed . . . at the request of the foster
parent." At oral argument, counsel for the foster parents stated
that this limitation was the result of
"a practical consideration. . . . [I]f a foster parent feels
that the child cannot stay with the foster parent any longer, it
doesn't make sense to try and impose that. . . . [I]t's hard to
contemplate a situation in which it would be in the best interest
of a child to stay with people that had asked that the child be
taken."
Tr. of Oral Arg. 49. As many as one-third of transfers between
foster homes may be at the request of the foster parents.
N 15,
supra.
[
Footnote 56]
"As of July 1, 1974, New York City has provided, at the foster
parent's request, as a substitute for or supplement to the agency
conference, a pre-removal 'independent review' conducted 'in
accordance with the concepts of due process.' Its salient features,
as set forth in an internal memorandum of August 5, 1974, are as
follows: (1) the review is heard before a supervisory official who
has had no previous involvement with the decision to remove the
child; (2) both the foster parents and the agency may be
represented by counsel and each may present witnesses and evidence;
(3) all witnesses must be sworn, unless stipulated otherwise, and
all testimony is subject to cross-examination; (4) counsel for the
foster parents must be allowed to examine any portion of the
agency's files used to support the proposal to remove the child;
(5) either a tape recording or stenographic record of the hearing
must be kept and made available to the parties at cost; and (6) a
written decision, supported by reasons, must be rendered within
five days, and must include a reminder to the foster parents that
they may still request a post-removal hearing under N.Y.C.R.R. §
450.14."
418 F. Supp. at 285.
[
Footnote 57]
The District Court itself apparently relied on similar logic, in
exempting in its judgment removals requested by foster parents from
the mandatory hearing requirement.
See n 55,
supra. In terms of the
emotional cohesion of the family, the difference between a foster
parent who requests removal of the foster child, and one who merely
consents to removal seems irrelevant.
[
Footnote 58]
In assessing the likelihood of erroneous decisions by the agency
in the absence of elaborate hearing procedures, the fact that the
agency bears primary responsibility for the welfare of the child,
and maintains, through its caseworkers, constant contact with the
foster family is relevant. The foster parent always has the
opportunity to present information to the agency at this stage. We,
of course, do not suggest that such informal "process" can ever do
service for the fundamental requirements of due process.
Cf. In
re Gault, 387 U. S. 1 (1967).
But it should not routinely be assumed that any decision made
without the forms of adversary factfinding familiar to the legal
profession is necessarily arbitrary or incorrect.
[
Footnote 59]
Appointment of such representatives in each of the numerous
cases in which the foster child is very young would, of course,
represent a major administrative burden on the State. This burden
would be balanced by little gain in accuracy of decisionmaking,
since the appointed representative's inquiry into the best
interests of the child would essentially duplicate that already
conducted by the agency and that to be conducted at the hearing by
the administrative decisionmaker.
Moreover, the State's interest in avoiding "fiscal and
administrative burdens,"
Mathews v. Eldridge, 424 U.
S. 319,
424 U. S. 335
(1976), is not the only interest that must be weighed against
requiring still more elaborate hearing procedures. As the District
Court acknowledged, where delicate judgments concerning "the often
ambiguous indices of a child's emotional attachments and
psychological development" are involved, we must also consider the
possibility that making the decisionmaking process increasingly
adversary "might well impede the effort to elicit the sensitive and
personal information required," 418 F. Supp. at 286, or make the
struggle for custody, already often difficult for the child,
see, e.g., Kadushin 404, even more traumatic. In such a
situation, there is a value in less formalized hearing procedures.
See also n 57,
supra.
[
Footnote 60]
Since the class certified by the District Court embraces all
foster parents who have had a foster child living with them for
over one year, while § 392 is limited in application to children in
foster care for 18 months, each class includes some children not
included in the other. For example, a child who had been in foster
care for 13 month, all of it with the same family, is a member of
the certified class but not eligible for § 392 review. On the other
hand, a child who has been in foster care for two years, but not
with the same family, is eligible for § 392 review, but is not a
member of the certified class.
[
Footnote 61]
In this Court, as in the District Court, the primary reliance of
the defendants and intervenors has been on the adequacy of § 392 as
a procedure for protecting the interests of the foster family,
without as fully addressing the adequacy otherwise of the
procedures provided by 18 N.Y.C.R.R. § 450.10 and Soc.Serv.Law §
400. Our consequent emphasis upon the adequacy of § 392 procedures
as requiring reversal of the District Court is not to be understood
to imply any view upon the adequacy of the alternative
administrative remedies to protect those interests.
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring in the judgment.
The foster parent-foster child relationship involved in this
litigation is, of course, wholly a creation of the State. New York
law defines the circumstances under which a child may be placed in
foster care, prescribes the obligations of the foster parents, and
provides for the removal of the child from the foster home "in
[the] discretion" of the agency with custody of the child.
N.Y.Soc.Serv.Law § 383(2) (McKinney 1976). The agency compensates
the foster parents, and reserves in its contracts the authority to
decide as it sees fit whether and when a child shall be returned to
his natural family or placed elsewhere.
See Part I-A of
the Court's opinion,
ante at
431 U. S.
823-828. Were it not for the system of foster care that
the State maintains, the relationship for which constitutional
protection is asserted would not even exist.
The New York Legislature and the New York courts have made it
unmistakably clear that foster care is intended only as a temporary
way station until a child can be returned to his natural parents or
placed for adoption. Thus, Soc.Serv.Law § 38b(1)(b) (McKinney Supp.
1976-1977) states a legislative finding that
"many children who have been placed in foster care experience
unnecessarily protracted stays in such care without being adopted
or returned to their parents or other custodians. Such unnecessary
stays may deprive these children of positive, nurturing family
relationships and have deleterious effects on their development
into responsible, productive
Page 431 U. S. 857
citizens."
And, specifically repudiating the contention that New York law
contemplates that a child will have a "secure, stable and
continuous" relationship with a third-party custodian as the
child's "psychological parent," the New York Court of Appeals has
"[p]articularly rejected the notion, if that it be, that
third-party custodians may acquire some sort of squatter's rights
in another's child."
Bennett v. Jeffreys, 40 N.Y.2d 543,
552 n. 2, 356 N.E.2d 277, 285 n. 2.
In these circumstances, I cannot understand why the Court thinks
itself obliged to decide these cases on the assumption that either
foster parents or foster children in New York have some sort of
"liberty" interest in the continuation of their relationship.
[
Footnote 2/1] Rather than
tiptoeing around this central
Page 431 U. S. 858
issue, I would squarely hold that the interests asserted by the
appellees are not of a kind that the Due Process Clause of the
Fourteenth Amendment protects.
At the outset, I would reject, as does the Court, the apparent
holding of the District Court that "the trauma of separation from a
familiar environment" or the "harmful consequences of a precipitous
and perhaps improvident decision to remove a child from his foster
family,"
Organization of Foster Families v.
Dumpson, 418 F.
Supp. 277, 283, constitutes a "grievous loss" which therefore
is protected by the Fourteenth Amendment. Not every loss, however
"grievous," invokes the protection of the Due Process Clause. Its
protections extend only to a deprivation by a State of "life,
liberty, or property." And when a state law does operate to deprive
a person of his liberty or property, the Due Process Clause is
applicable even though the deprivation may not be "grievous."
Goss v. Lopez, 419 U. S. 565,
419 U. S. 576.
"[T]o determine whether due process requirements apply in the first
place, we look not to the
weight' but to the nature of the
interest at stake." Board of Regents v. Roth, 408 U.
S. 564, 408 U. S.
570-571. See Ingraham v. Wright, 430 U.
S. 651, 430 U. S. 672;
Meachum v. Fano, 427 U. S. 215,
427 U. S. 224;
Goss v. Lopez, supra at 419 U. S.
575-576.
Page 431 U. S. 859
Clearly, New York has deprived nobody of his life in these
cases. It seems to me just as clear that the State has deprived
nobody of his liberty or property. Putting to one side the District
Court's erroneous "grievous loss" analysis, the appellees are left
with very little ground on which to stand. Their argument seems to
be that New York, by providing foster children with the opportunity
to live in a foster home and to form a close relationship with
foster parents, has created "liberty" or "property" that it may not
withdraw without complying with the procedural safeguards that the
Due Process Clause confers. But this Court's decision in
Meachum v. Fano, supra, illustrates the fallacy of that
argument.
At issue in
Meachum was a claim by Massachusetts state
prisoners that they could not constitutionally be transferred to
another institution with less favorable living conditions without a
prior hearing that would fully probe the reasons for their
transfer. In accord with previous cases,
see, e.g., Goss v.
Lopez, supra; Wolff v. McDonnell, 418 U.
S. 539;
Board of Regents v. Roth, supra; Perry v.
Sindermann, 408 U. S. 593;
Goldberg v. Kelly, 397 U. S. 254, the
Court recognized that where state law confers a liberty or property
interest, the Due Process Clause requires certain minimum
procedures "
to ensure that the state-created right is not
arbitrarily abrogated.'" 427 U.S. at 427 U. S. 226,
quoting Wolff, supra at 418 U. S. 557.
But the 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 often involve no
more than informed predictions as to what would best serve . . .
the safety and welfare of the [child]." 427 U.S. at 427 U. S.
225.
Page 431 U. S. 860
Similarly, New York law provides no basis for a justifiable
expectation on the part of foster families that their relationship
will continue indefinitely.
Cf. Perry v. Sindermann, supra
at
408 U. S.
599-603. 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 281. To be sure, the New York system
has not operated perfectly. As the state legislature found, foster
care has in many cases been unnecessarily protracted, no doubt
sometimes resulting in the expectation on the part of some foster
families that their relationship will continue indefinitely. But,
as already noted, the New York Court of Appeals has unequivocally
rejected the notion that, under New York law, prolonged third-party
custody of children creates some sort of "squatter's rights." And,
as this Court stated in
Perry v. Sindermann, supra at
408 U. S. 603,
a mere subjective "expectancy" is not liberty or property protected
by the Due Process Clause.
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. The Court discusses in
431 U. S.
Unlike the prison transfer situation in
Meachum v. Fano,
it does not appear that child custody decisions can be made "for
whatever reason or for no reason at all." 427 U.S. at
427 U. S. 228.
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.
See, e.g.,
Bennett v. Jeffreys, 40 N.Y.2d 543, 356 N.E.2d 277;
In re
Jewish Child Care Assn. (Sanders), 5 N.Y.2d 222, 156 N.E.2d
700;
State ex rel. Wallace v. Lhotan,
Page 431 U. S. 861
51 App.Div.2d 252, 380 N.Y.S.2d 250,
appeal dismissed and
leave to appeal denied, 39 N.Y.2d 705. 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.
See, e.g.,
Bennett, supra at 552 n. 2, 356 N.E.2d at 285 n. 2:
"Third-party custodians acquire
rights' . . . only derivatively
by virtue of the child's best interests being considered. . .
."
What remains of the appellees' argument is the theory that the
relation of the foster parent to the foster child may generate
emotional attachments similar to those found in natural families.
The Court surmises that foster families who share these attachments
might enjoy the same constitutional interest in "family privacy" as
natural families.
See, e.g., Moore v. East Cleveland, ante
at
431 U. S.
504-505 (plurality opinion of POWELL, J.);
Roe v.
Wade, 410 U. S. 113,
410 U. S.
152-153;
Pierce v. Society of Sisters,
268 U. S. 510;
Meyer v. Nebraska, 262 U. S. 390.
On this score, the Court hypothesizes the case of
"a child [who] has been placed in foster care as an infant, has
never known his natural parents, and has remained continuously for
several years in the care of the same foster parents. . . ."
Ante at
431 U. S. 844.
The foster family might then "hold the same place in the emotional
life of the foster child, and fulfill the same socializing
functions, as a natural family."
Ibid.
But under New York's foster care laws, any case where the foster
parents had assumed the emotional role of the child's natural
parents would represent not a triumph of the system, to be
constitutionally safeguarded from state intrusion, but a failure.
The goal of foster care, at least in New York, is not to provide a
permanent substitute for the natural or adoptive home, but to
prepare the child for his return to his real parents or placement
in a permanent adoptive home
Page 431 U. S. 862
by giving him temporary shelter in a family setting.
See Part I-A of the Court's opinion,
ante at
431 U. S.
823-828. Thus, the New York Court of Appeals has
recognized that the development of close emotional ties between
foster parents and a child may hinder the child's ultimate
adjustment in a permanent home, and provide a basis for the
termination of the foster family relationship.
In re Jewish
Child Care Assn. (Sanders), supra. [
Footnote 2/2]
See also State ex rel. Wallace v.
Lhotan, supra. Perhaps it is to be expected that children who
spend unduly long stays in what should have been temporary foster
care will develop strong emotional ties with their foster parents.
But this does not mean, and I cannot believe, that such breakdowns
of the New York system must be protected or forever frozen in their
existence by the Due Process Clause of the Fourteenth Amendment.
[
Footnote 2/3]
One of the liberties protected by the Due Process Clause, the
Court has held, is the freedom to "establish a home and bring up
children."
Meyer v. Nebraska, supra at
262 U. S. 399.
If a State were to attempt to force the breakup of a natural
family,
Page 431 U. S. 863
over the objections of the parents and their children, without
some showing of unfitness and for the sole reason that to do so was
thought to be in the children's best interest, I should have little
doubt that the State would have intruded impermissibly on "the
private realm of family life which the state cannot enter."
Prince v. Massachusetts, 321 U. S. 158,
321 U. S. 166.
But this constitutional concept is simply not in point when we deal
with foster families as New York law has defined them. The family
life upon which the State "intrudes" is simply a temporary status
which the State itself has created. It is a "family life" defined
and controlled by the law of New York, for which New York pays, and
the goals of which New York is entitled to and does set for
itself.
For these reasons, I concur in the judgment of the Court.
[
Footnote 2/1]
The Court's opinion seems to indicate that there is no reason to
distinguish between the claims of the foster parents and the foster
children, either because the parents have standing to assert the
rights of the children or because the parents' interest is
identical to that of the children.
See ante at
431 U. S.
841-842, nn. 44, 45. I cannot agree.
First, it is by no means obvious that foster parents and foster
children have the same interest in a continuation of their
relationship. When the child leaves the foster family, it is
because the agency with custody of him has determined that his
interests will be better served by a new home, either with his
natural parents, adoptive parents, or a different foster family.
Any assessment of the child's alleged deprivation must take into
account not only what he has lost, but what he has received in
return. Foster parents, on the other hand, do not automatically
receive a new child with whom they will presumably have a more
profitable relationship.
Second, unlike the situation in
Craig v. Boren,
429 U. S. 190,
429 U. S.
195-196, this is not a case where the failure to grant
the parents their requested relief will inevitably tend to
"[dilute] or adversely [affect]" the alleged constitutional rights
of the children. Denying the parents a hearing simply has no effect
whatever on the children's separate claim to a hearing, and does
not impair their alleged constitutional rights. There is therefore
no standing in the parents to assert the children's.claims.
See Note, Standing to Assert Constitutional
Jus
Tertii, 88 Harv.L.Rev. 423, 432 (1974), cited in
Craig,
supra at
429 U. S.
195.
I would nevertheless consider both the parents' and the
children's claims in these cases, but only because the suit was
originally brought on behalf of both the parents and the children,
all of whom were parties plaintiff. While it is true that their
interests may conflict, there was no reason not to allow counsel
for the parents to continue to represent the children to the extent
that their interests may be compatible. The conflict was avoided by
the District Court's appointment of independent counsel, who took a
position opposite to that of the foster parents as to where the
children's welfare lay. The appointment of independent counsel,
however, should not have left the children without advocacy for the
position, right or wrong, that they are entitled to due process
hearings. That position should have been left to be asserted by the
counsel who originally brought the suit for the children. My view,
therefore, is that the parent and the children are properly before
the Court, and entitled to assert their own separate claims, but
that neither group has standing to assert the claims of the
other.
[
Footnote 2/2]
"That the Sanders have given Laura a good home and have shown
her great love does not stamp as an abuse of discretion the Trial
Justice's determination to take her from them. Indeed, it is the
extreme of love, affection and possessiveness manifested by the
Sanders, together with the conduct which their emotional
involvement impelled, that supplies the foundation of
reasonableness and correctness for his determination. The vital
fact is that Mr. and Mrs. Sanders are not, and presumably will
never be, Laura's parents by adoption. Their disregard of that fact
and their seizure of full parental status in the eyes of the child
might well be, or so the Trial Justice was entitled to find, a
source of detriment to the child in the circumstances
presented."
5 N.Y.2d at 229, 156 N.E.2d at 703.
[
Footnote 2/3]
The consequences of extending constitutional protection to the
foster family relationship are, as the Court points out,
ante at
431 U. S.
846-847, especially absurd when the child would
otherwise be immediately returned to his natural parents. If the
foster family relationship were to occupy the same constitutional
plane as that of the natural family, the conflict between the
constitutional rights of natural and foster parents would be
totally irreconcilable.