Smith v. Organization of Foster Families For Equality & Reform – Oral Argument – March 21, 1977

Media for Smith v. Organization of Foster Families For Equality & Reform

Audio Transcription for Opinion Announcement – June 13, 1977 in Smith v. Organization of Foster Families For Equality & Reform


Warren E. Burger:

We will hear arguments first this morning in 76-180, Henry Smith against the Organization of Foster Families and the related cases.

Ms. Gans, you may proceed whenever you are ready.

Louise Gruner Gans:

Mr. Chief Justice, and may it please the Court.

I represent appellant’s natural parents, who entrusted their children to New York Social Services officials for interim foster care and not for adoption.

The overall question raised by the order of the three-judge court below is whether the Federal Constitution requires New York State to provide automatic hearings before a child in a foster home may return to its own home or be transferred to another foster home or adoptive home.

Warren E. Burger:

Due process to whom, Ms. Gans?

Louise Gruner Gans:

Due process to the child.

The specific question raised with respect to natural parents is whether the Federal Constitution permits such hearings to be held when children are returning home to them.

Your clients voluntarily turned over their children for temporary foster care?

Louise Gruner Gans:

That is correct.

It was not the result of a court order…

Louise Gruner Gans:

No, it was not the result of a court order.

Because the children were delinquent or neglected or…

Louise Gruner Gans:

No, there was no adjudication of neglect.

On the contrary, New York has neglect proceedings.

The purpose of this kind of placement, which follows a separate legal track, is to enable parents who through no fault of their own are unable to care for their children because of poverty and some other crisis.

Or illness or something?

Louise Gruner Gans:

That is correct.

So this was voluntary on their part and when they did so, what was the understanding as to their conditions under which the children would return to them?

Louise Gruner Gans:

The essential understanding as far as they were concerned were two.

They were willing to entrust their children to the State; they needed help. They were assured that they had a right to have the children returned.

Assured by statutory law?

Louise Gruner Gans:

By statutory law, and by actual representations of Social Services’ officials.

Now, the forms they sign do not always say that, and since this action has commenced, there have been about four different forms the parents have signed: the first one, which says nothing; the last one, which is in Special Procedure No. 29 of the New York City Department of Social Services, says you have a right to have your child returned.

When you are fit, is that it?

Louise Gruner Gans:

That is right.


Excuse me, I don’t want to get ahead of you.

Louise Gruner Gans:

Not when you are fit.

We consider you legally fit.

Louise Gruner Gans:

It is not unfitness to be ill in the same way as it is to neglect a child.

Well, when you are ready to —

Louise Gruner Gans:

When you are ready.

You are entitled to the return of your child, and we can unilaterally return the child, subject to our power as the State of New York always to take into court if we think you would be abusive or neglectful.

So that is the basic understanding.

There are additional understandings: the parent is expected to visit the child.

Again, if a parent is temporarily hospitalized, she can’t; but when she is able to, she is expected to visit the child, and she is expected to make efforts to deal with whatever condition that required the placement so that the child can come home.

But —

The foster-parent relationship, then, isn’t an incipient adoption at all where the natural parent has signed off.

Louise Gruner Gans:

That is correct, it is not an adoption.

It is only if the parents’ rights can subsequently be terminated in a proceeding which New York provides for termination of parental rights.

For example, a parent places a child; and she recovers, never comes to see the child, New York after a certain point can bring a proceeding to terminate the parent’s parental rights, and then the child is available for adoption.

But it is not anticipated that any voluntary foster-care placement with the foster parent is an adoptive placement, not at all.

Who or what triggers the hearing in New York State under the conditions that you just described to permanently terminate the birth parents?

Louise Gruner Gans:

The way the present New York scheme works, basically during the first 18 months of placement, the way the scheme is drawn, the relationship of parent and agency involving the child is insulated from competing claims of foster parents.

During this period, for example, if the parent who places a child is never heard from again, unless the parent is hospitalized and is unable to come, then sometime around the one-year point, the State could file this proceeding, and it is up to the State.

Well, who would draw the State’s attention to this situation?

Louise Gruner Gans:

Well, the State monitors all placements.

The Department of Social Services has an extensive bureaucracy of social workers whose responsibility it is to keep in touch with the parent, to have a special social worker for the child and to have someone who supervises the foster home.

Basically, to monitor the situation?

Louise Gruner Gans:

To monitor the situation, correct and they keep agency case records, both as a matter of social practice and as a matter of requirement of State regulations.

So they must document at all times what they are doing in the case.

But during the first 18 months, the agency can see, well, is this mother dealing with her situation and by the 18-month point or sooner — the earliest point is 6 months — if the parent disappears, has never been heard from again, they can bring the proceeding.

Ms. Gans, in this case I saw he has been there four years or more?

Louise Gruner Gans:

That is correct.

Well, how did that happen?

Louise Gruner Gans:

Well, I’m tempted to say that is a good question.

It requires this explanation.

Until about six years ago, this whole system was an administrative system without any kinds of legal checks for the parent, for the child, for the foster parent.

So, for example, if a parent wanted a child returned, there was no mechanism which would ensure that the child was returned.

No habeas corpus?

Louise Gruner Gans:

Well, if the parent knew about it.

One of my clients, Ms. Rodriguez, was a person who placed her child, wanted her child three months later.

Although the law does provide habeas corpus, no one advised her that it exists.

So she just kept going to the agency and saying, “I want my child” and I tried to document in the record as much as I could and in my brief how that could cause time to pass, even though the mother wanted the child and even though the mother was not unfit.

So that was one problem.

The other problem is, the agency had no accountability independently aside from the parent.

Now, the purpose of the Foster-Care Review, which was enacted in, well, roughly 1972 and has gone through a series of transformations, was to provide an accountability mechanism so that this does not happen.

In 1975, New York passed a Social Services Law Section 384(a), which provides when a parent asks for a child, the State must return the child or go to court, and there has to be an immediate hearing showing why the child should not be returned.

Now, what we have in the foster-care system now are children who are still, you might say, the residue of the old system.

In Ms. Wallace’s case, those children who were in placement for four years — she had six children — after two years the agency returned two children to her with the idea that if she managed with the two, in a while the others would come home.

Now, this is not an unusual approach where there are many children and there is a mother who has gone through a depression.

So that’s the explanation.

I hear what you said.

Louise Gruner Gans:

The effect of the decision of the District Court for a parent who wants her children and asks for them under present law is that although the State finds nothing wrong with the parent, if the child has been in foster care for one year, not four years.

The four-year case will now be taken care under a Foster-Care Review proceeding.

The agency cannot return the child; and the parents’ rights is conditioned on prevailing in an enforced custody contest with the foster parent.

And what was the standard, was the standard imposed?

Louise Gruner Gans:

No, there was no standard imposed.

Well, then why do you say who must prevail in a custody proceeding, the parent?

Louise Gruner Gans:

Well, if it is a contest, whatever the standard, the parent has to prevail.

Well, if it is a contest; it may not be.

Louise Gruner Gans:

Well, the District Court ordered hearings to be held in every case.

Well, but to find out what?

Louise Gruner Gans:

To provide a forum.

What the District Court said —

I know to provide a forum; to find out what?

Louise Gruner Gans:

Well, that is exactly our question, to find out what.

We submit that if there is information which a foster parent has which would suggest that a child that is about to be returned home might in some way be neglected or harmed by the parent that there are existing procedures available that the foster parent can resort to or, of course, that the Social Services’ agency can resort to.

Well, it may be the only thing the District Court might want the hearing to provide is, as you say, a forum where the agency can come in and formally say, “Yes, we do not think there is anything wrong with the children going back to their parents”.

Louise Gruner Gans:

Well, that hardly seems to be a reason for a hearing in which the foster parent, who as…

So I take it, then, you think the standard really would be at the hearing what are the best —

Louise Gruner Gans:

The hearing —

Let me just ask one question.

What are the best interests of the child?

Louise Gruner Gans:


No, why?

Louise Gruner Gans:

If the case is of a child in a foster home for one year, then the standard is, is the parent unfit.

Well, did the District Court say that?

Louise Gruner Gans:

The District Court said that it was leaving the New York standard in place, and that is the standard in one-year cases, as interpreted by the New York Court of Appeals.

I thought you said a minute ago they did not provide a standard.

Louise Gruner Gans:

Well, the District Court said it was not creating a new standard.

What happened is that when the foster parents brought the action, they challenged the removal hearings, and they also challenged the standards.

So you think the foster parent has the burden, then, of proving unfitness for the parent?

Louise Gruner Gans:

The foster parent and the State, yes.

The parent hasn’t got any burden.

Louise Gruner Gans:

No — well, the parent has to defend a right, which she has, because under State law she is legally fit; and she has to defend her right without there being an accusation, because the foster parent comes —

If the foster parent has the burden, why, the foster parent is going to have to put on some evidence, I suppose.

Louise Gruner Gans:

Our point is this: if the foster parent has evidence, then Article 10 of the Family Court Act provides a proceeding, which is instantly available to the foster parent and anyone else, to protect the child from being returned to a neglectful parent.

Section 1031 of the New York Family Code Act specifically provides that neglect proceedings are applicable with respect to children in foster care who may be returned home to a home where they may be neglected.

So there is that forum.

In addition, if the foster parent has information about possible neglect and tells that to the social worker, New York Child Protective Laws mandate an immediate 24-hour investigation, and a social worker who does not follow up on the information is subject to criminal and civil liability.

What the District Court holding says is even though the foster parent has presented that evidence to the social worker and the social worker has gone through the investigate and found nothing to it, nonetheless there must still be a due-process hearing.

Louise Gruner Gans:

That is correct.

We say that that is a hearing without a purpose, a fishing expedition against the parent to find out about parents’ failings, and we believe that to require every parent of a child in foster care, although they are legally fit, if they’ve had their child in foster care for one year, to submit to that kind of hearing is an impermissible burden on the parent.

Warren E. Burger:

Your time has expired now, Ms. Gans.

Let me just ask one question, please.

What is the requirement of notice to the foster parent before the child is returned to the natural parents?

What does the State require?

Is there any requirement of that?

Louise Gruner Gans:

There is a requirement of a ten-day notice before any child is moved out of a foster home.

We have raised in our brief a question — well, I think the notice requirement applies in all cases.

We have raised in our brief a question as to whether any of the subsequent hearing procedures were intended to apply to the case of children going home, as opposed to situations where children were going to other foster places.

Warren E. Burger:

Ms. Buttenwieser?

Helen L. Buttenwieser:

Mr. Chief Justice, may it please the Court.

I am the Attorney appointed by the Court to represent the children, and I want to discuss this case from the point of view of the rights of the children.

In fact, my principle objection on behalf of the children is that I am reluctant to see any more adults being given any more rights from which they have to be disentangled before one can consider the best interests of the child.

This case was to start —

Warren E. Burger:

Your position doesn’t require you to disparage the rights of the natural parents or attack those rights.

Helen L. Buttenwieser:

We do not attack anybody’s rights.

We do not attack the rights of the foster parents, the natural parents or anybody.

Warren E. Burger:

Well, do you concede that the foster parents have some constitutional rights?

Helen L. Buttenwieser:

No, sir, we do not concede that.

Warren E. Burger:

I didn’t think so.

Helen L. Buttenwieser:

But I didn’t assume that we had to attack it, because the court below found that they did not or did not reach that question; it did not grant them constitutional right.

And when I’m talking about the children, I’m not talking about delinquent children; I’m talking about all of the children who come into care of the State, because the parents are not able to take care of them.

Once I got into the case, I examined the complaint and decided that on behalf of the children, the relief that was being requested was really benefiting the foster parents and not the children.

And I have submitted an answer in which I have stated that none of the relief requested will be of benefit to the children, and I have asked that it be dismissed.

However, the issue as to whether or not there is as a result a case or a controversy has already been briefed, and unless the Court wishes an answer, I do not propose to answer that question.

We are opposed to these mandated hearings in the first place, because we do not see the advantage to anyone.

As it is, a foster parent has a right to ask for at least to be heard — not a hearing, but to be heard — if it wishes to, and the number of foster parents that have requested to be heard in New York City since a change went in in the regulations permitting an actual hearing has been, I think, six or seven cases or at most ten cases in one year, whereas if we have a hearing here we will have upwards of thousands of cases, 2,000 and 3,000, cases, because that is the number of children who either return home or go to another facility or are placed for adoption out of the foster home, because a number of foster families adopt the children if they become free for adoption, and that is desirable; but where it is not desirable and the children have to be moved into an adoptive home.

You take the little boy who was involved as a plaintiff in this proceeding, Rafael Serrano.

The parents claimed that they had a right to consider that this child would stay with them; but when they separated, they left the child.

The child is now back in an institution, because they did not keep the child.

There was no counter-obligation on the part of the foster family to keep the child.

The issue as to whether or not these proceedings, which have been provided by the State of New York for determining whether or not the child should be returned, have up until now not only adequately, as far as anybody can see, determined when a child should go back.

But there is actually no evidence in the record that they are unsatisfactory, and there is no evidence in the record that a hearing would add to anything that would be helpful.

As a matter of fact, in the opinion, the majority of the court writes, “A hearing performs the salutary function of providing the agency with an organized forum in which to gather information”.

I’m afraid one does not gather information in a forum, and that information is already available to the agency.

Warren E. Burger:

Do you think the State has adequate facilities to do this without the assistance of either of the Federal Courts?

Helen L. Buttenwieser:

Yes, very definitely.

These children are all under the care of authorized agencies, either the City Commissioner, County Commissioner or private agencies.

In New York City, they are private agencies.

They are by statute visited regularly. They are required by the laws of the State of New York to encourage parental visiting so that the children can be returned home, and they are required at very short intervals to report to the City or State as to what they have.

All of the material which the opinion refers to as the function of gathering information has already been gathered, is already before the decision-maker on behalf of the child.

And the only time that hearings have been required in the past is where the foster parent has decided that the foster parent wants to keep the children.

I feel in making the children who were under the care of these foster parents plaintiffs in this proceeding was an unreasonable usurpation of the rights of the children.

The children were under the care of public departments.

By contact with the parents, they had guardians.

They did not require next friends, and they certainly did not require next friends who were looking to the joining of the children with them to obtain a right that foster parents not only do not have now, but by contract do not have now.

The contract with the foster parents requires them to return the children at any time that the agency decides that it is in the best interests of the child to be returned.

Well, I take it.

That is upon ten days’ notice, however, isn’t it?

Helen L. Buttenwieser:

The ten days’ notice is the official notice, they can have no less than ten days.

That is the statutory notice.

Helen L. Buttenwieser:

That is the statutory notice.

However, when children are to be returned to their natural parents or to go to another facility, it is customary — I cannot say that it occurs in every case, because I haven’t examined every case; but I represent a number of social agencies, and I know that those social agencies, at least, and many, many others work with the children and with the foster family to enable the child to move from that foster facility.

And as a matter of fact, the only evidence on the procedures for removing children is in the record.

It’s the evidence testified to by Ms. Creech and Ms. Edwards, both of them Executive Directors of agencies with children, and they describe a procedure whereby the child is facilitated in making the change.

If you have a hearing, what you have is litigation; you have the child the subject of warring parties, and then at the time of the decision when it has already been made, you then have a far more precipitous move of the children.

But the statute itself, the New York law, does provide, as I understood it from reading these briefs, that if a child has been in a foster home for 18 months or longer.

The foster parents are given an opportunity to try to explain why the child should not leave the foster home.

Is that correct?

Helen L. Buttenwieser:

It is not exactly that.

This is called a Foster-Care Review and the objective of that review is the child’s welfare, not the right of the foster parent to say why the child should remain, and actually the emphasis.

Well, why in the interest of the child’s welfare the child should not leave the foster home.

Helen L. Buttenwieser:

No, why in the interest of the child’s welfare it should stay in the foster home, because it is presumed that the welfare of the child will require its return home if there is a home to return to or be placed in an adoptive home.

Sometimes it is returned to natural parents, sometimes it is transferred to another foster family or to an institution, and sometimes it is a transfer for purposes of adoption; isn’t it?

Helen L. Buttenwieser:

Yes, but the actual statute is called Foster-Care Review and it is to review why the child has should not be in a permanent setting, whether it is his own home or an adoptive home or the foster-family adopt, whichever it is.

Right and that New York law does after a child has been 18 months or more in a foster family.

Helen L. Buttenwieser:

That is correct.

It gives some rights at least to be heard or be heard from to the foster parents, is that correct?

Helen L. Buttenwieser:

It does.

Is it clear in New York as to whether the foster parent or who has loco parentis over the child?

Helen L. Buttenwieser:

The Commissioner of Social Services.

The parent signs a document giving the Commissioner of Social Services, either the County or the City Commissioner, the custody of the child, a temporary custody to be returned to the child on the happening of an event or within on demand.

That I understand.

But who determines what the child shall do, like who does what a parent would do?

Helen L. Buttenwieser:

The authorized agency that is in care of the child.

Sometimes it is —

Well, how can the authorized agency take care of the day-by-day care of the child?

Helen L. Buttenwieser:

The authorized agencies all have staffs of trained social workers who visit regularly in the home, in the school, the home with the natural parent.

Once again, who is in the parental position day by day and, since you pushed me, hour by hour?

It is the foster parent, isn’t it?

Helen L. Buttenwieser:

Yes, the foster parent —

Now, is that delegated from.

Helen L. Buttenwieser:

It is by contract, not delegated.

The foster parent enters into a contract with the Commissioner or the authorized agency.

Is it fundamentally different from the arrangement made when people take their children and put them in a summer camp for three months except that is a longer arrangement?

Helen L. Buttenwieser:

In all fairness to the foster-family arrangement, I think it is a closer arrangement than that; but it is very much like that.

It is like a boarding school with all the attributes of home.

It is a contract with them, a contract which neither binds them nor binds the Commissioner.

The element which is binding is the best interests of the child.

Now, sometimes people do make mistakes as to the best interests of the child, but then so do courts; so do adversary proceedings.

Otherwise, we would not have any appellant procedures if courts never made a mistake and there are procedures whereby if it is in the child’s best interests to remain in the foster home, the foster home has access to the courts, family courts, the Supreme Court under writ of habeas corpus, and they are not without recourse as far as the child.

Could I ask, on Page 20 of the brief of the New York City appellants, it is said that SSC Procedure No. 5 is this…

Helen L. Buttenwieser:

Social Services law.

I do not know what number.

Now, it says that under this procedure instituted in 1974, a foster parent may request a full trial-type hearing before removal.

Helen L. Buttenwieser:

That’s right.

Now, I thought that’s what this case was all about and it goes on to say between August 1974 and June 1976, only 26 foster parents requested hearings.

Helen L. Buttenwieser:

That’s right.

Now, were these foster parents in New York City or not?

Helen L. Buttenwieser:

These foster parents were in New York City.

Did they have the right or didn’t they to request this full trial-type hearing?

Helen L. Buttenwieser:

They requested a full trial-type hearing.

Well, were they granted it?

Helen L. Buttenwieser:

Yes, they were granted it.

Well, what did the District Court order?

Helen L. Buttenwieser:

The District Court ordered that in every case of every child that is to be returned to their natural parent or to another facility, there must be a hearing, and that would be children in the thousands, sometimes where there is no dispute.

With or without a request.

The State of New York is well —

Helen L. Buttenwieser:

With or without a request.

Yes, but any foster parent who has this kind of a right hasn’t too much to complain about, I take it.

Helen L. Buttenwieser:

Not in New York City.

This is not true in the rest of New York State.

I understand.

Helen L. Buttenwieser:

No, and I represent three sizeable child-care agencies, and I have had one such hearing since the law went into effect.

Warren E. Burger:

Thank you.

Helen L. Buttenwieser:

Ms. Marcus?

Maria L. Marcus:

Mr. Chief Justice, and may it please the Court.

I am the Assistant Attorney General of New York State, but I am representing today the State of New York and the City of New York and if the Court please, I would like to reserve five minutes for rebuttal.

I think Mr. Justice White’s questions illustrate the drastic overkill in the decision below, in which we have in the year 1975 16 requests for hearings.

26 in the entire period that this hearing procedure of New York City has been in operation and just to summarize what that procedure would offer to anybody who wants it counsel, cross-examination; it’s a full-dress adversary hearing.

That is New York City.

Maria L. Marcus:

That is correct.

Of course, the vast majority of foster children are in the New York City population.

Outside of New York City, it’s the ten-day notice; but then in the sit-down sort of discussion if the foster parent wants to talk about it.

Maria L. Marcus:

Yes, and of course the removal is not — the ten-day notice simply sets the date of the removal; it is not by any means the parameters of the process.

The process goes on over a period of months.

But if the foster parent wants to come in and talk about it, they will listen.

Maria L. Marcus:

That is correct and also, of course, at the 18-month point, New York State has a statute in which a full judicial hearing is available to a foster parent who can come in and present whatever reasons they would present to the hearing officers that are now being asked for by the District Court to the Family Court.


In a sense, it’s sort of a neglect proceeding, or they would be talking about the neglect of the parents?

Maria L. Marcus:

In 392, they can present a variety of information; if they have information of neglect or abuse, that can of course be brought forward.

They can also bring forward any other reason that they feel that the child should remain in their home.

I see.

In New York City, this right to a hearing begins at the initiative of foster parents is applicable no matter how long the child has been in the foster home, or does that have to have been 18 months?

Maria L. Marcus:

It is triggered by the removal.

It has nothing to do with 18 months, but when there has been a removal or there will be a removal.

Any time there is a proposed removal.

Maria L. Marcus:

To a foster-family placement, as opposed to the natural parents.

As opposed to returning to the natural parents.

Maria L. Marcus:

Right, if there is a removal contemplated to another foster placement, that foster parent can request the full-dress adversary hearing that New York City covers.

However short or long a time the child has been in the foster home.

Now, is that just from one foster parent to another foster parent, or is it also from a foster parent back to the natural parents?

Maria L. Marcus:

No, it does not include the return to the natural parent, it includes any other foster placement, which would be to a foster parent or to an institution, to something other than the natural parents.

How about or for adoption?

Maria L. Marcus:

The adoption, I think it would be inappropriate in the case where the child would be adopted.

Well, whatever you or I might think, I mean —

Maria L. Marcus:

It is not available in the case the child is being moved for adoption.

It is for another foster placement.


Maria L. Marcus:

Now, the District Court ordered these automatic hearings because children cannot speak for themselves and because the court assumed that the foster parent would not speak for them for a continuation of the foster-care relationship in asking for this hearing.

This assumption, it seems to me, is totally inconsistent with the argument of appellees that after a year, the foster-care relationship is the equivalent of the biological relationship, because it is inconceivable to assume that a biological parent is going to allow their child to be taken away and not bother to ask for a hearing.

If the foster parents have the feeling of natural parents for the child and they feel it should remain in the home, they will request a hearing; and since only 26 foster parents have done so in New York City in the past 2½ years.

This means that the transfers that have been involved have not involved any dispute between the parties and as this Court held last month in Codd v. Velger, due process doesn’t require a hearing where there are no factual disputes to be resolved.

Now, what is another result of the decision below, in addition to the costly hearings and the hearings which nobody really wants?

Why do you say no one wants them?

Maria L. Marcus:

Nobody except those few that have requested them.

Maria L. Marcus:

By the way, I am advised here that the hearings are available if the move is to an adoptive home; so I stand corrected on that point.

Tell us that again.

Maria L. Marcus:


Tell us that again, will you, please?

Maria L. Marcus:

I am advised that the hearing process available under the City procedure is available if the child is being moved to an adoptive home.

The only exception is if it is being moved to its natural parent.

But the ten-day notice and the sit-down discussion is available.

Maria L. Marcus:

That is required regardless of where the child is going.

That’s by statute, right?

Maria L. Marcus:


Now, Mr. Justice White asked the question earlier of what is the standard going to be in these hearings which are going to come up?

What is the standard now, what is going to happen under the District Court’s mandate?

Well, we have to first emphasize that New York law seeks to effectuate the reunion of the child with the natural parent or adoption.

It does not seek to maintain the child’s relationship to a foster parent who is taking care of that child by virtue of a contract and providing them with temporary care rather than an adoptive home.

So supposing that over a span of several years it’s deemed by the Social Service agency neither desirable to reunite the child with its natural parent nor to place it for its adoption.

Would it be normal in that situation for the child to remain with only one foster parent, or might there be more than one foster parent involved?

Maria L. Marcus:

Well, the 384(b), which is a new statute which has been passed, does contemplate the situation that you are asking about it.

It contemplates that there be no limbo of this type, that either the natural parent will be returned the child or, if it appears that the natural parent is not going to be fit to do that, that the parents’ rights should be terminated and the child be freed for adoption.

And the Legislature states there that it is contrary to the legislative purpose to allow this extended limbo to continue to occur.

But don’t situations arise where there is disharmony between a particular foster child and a particular foster parent so that there is a change in foster placement, even though there is no adoption?

Maria L. Marcus:

Yes, actually, it is interesting to note that of the removals from foster homes, one-third are at the request of the foster parent themselves.

So that of the movements within foster care, one-third of them are attributable to the foster parent and the foster parent’s request.

Now —

Well, as a practical manner, if you know, is that because the foster parents find this child is a problem child and they are not able to cope for it.

Is that generally the…?

Maria L. Marcus:

I think that is certainly a major reason.

Another reason would be that I think some foster parents are suited, for example, to a younger child who is more sedentary.

When the child becomes more physically active and engaging in more different kinds of things, a foster parent finds it more difficult to exercise supervision.

Now, what would the effect of the District Court’s decisions be that there are going to now be automatic hearings in virtually every case where a child has been in a foster home for one year or more?

Obviously, that decision would require a stay of removal during the period where the hearing is scheduled, takes place and a decision is rendered.

Maria L. Marcus:

And such stays would probably be issued during the course of appellate reviews that are available under the New York Civil Practice Law and Rules.

And what happens with the substantive decisions that are ultimately rendered in these administrative hearings and the review and in the judicial hearings, which are presently available under New York Law?

If the District Court’s decision is affirmed by this Court, New York judges will read it as a mandate to put a new weight in the scale, the child’s liberty interest in the foster-care relationship.

And since this liberty interest would be of constitutional magnitude, judges would ultimately give the natural parents’ claim less weight than it presently has, even where such parents are neither neglectful nor abusive.

Warren E. Burger:

You are now in your rebuttal time, Ms. Marcus.

Maria L. Marcus:

Well then, I will reserve the rest of the time.

Thank you, Your Honor.

Warren E. Burger:

Very well.

Ms. Lowry?

Marcia Robinson Lowry:

Mr. Chief Justice, and may it please the Court.

I represent the foster parents, who were plaintiffs below and who are appellees today and I’d like to address myself specifically to some of the statements that have been made by the appellant, and I would like to try and give the Court some understanding of the factual context in which the District Court decided this decision.

We have heard about the natural parents.

Indeed, natural-parent relationships have always been accorded primary protection by this Court, and we have no quarrel with that.

The record below shows that 80% of the children who were removed from foster homes in New York State after living in the foster home for a year or more were removed for a placement in another foster-care setting; that is, children were going to be moved either to another foster home, or they were going to be moved to an institution of some sort.

They were not going back to their biological families.

What percentage?

Marcia Robinson Lowry:

Over 80%.

Over 80.

Marcia Robinson Lowry:

Yes, Your Honor; 13% of those children went back to the biological family, 7% went into adoption.

That’s what is going on the foster-care system, and that is the system with which the New York District Court was dealing.

The length of time of children in foster care in New York State has, unfortunately, increased.

At the time that the District Court reached its decision, it found that children were in care an average of 4½ years; it is now over 5 years.

Not necessarily with the same family.

Marcia Robinson Lowry:

That is right, Your Honor; that’s right.

The only statistics with regard to children being removed from foster homes in which they have lived for a year or more were furnished in the course of this litigation and from the State Defendants in response to interrogatories.

Those are the only statistics, and it shows that most of these children, 80% of these children, are going elsewhere in the foster-care system.

Ms. Lowry, does the record show why the State decided in a typical case or in a certain percentage of cases or however it might show it to remove a foster child from one foster-care setting to another?

Marcia Robinson Lowry:

Your Honor, the record does not show that; but I would like to describe to the Court the situation of the foster family that initially brought this lawsuit.

I think it is very illustrative.

Ms. Madeleine Smith is a widow, who has been a foster family with a New York City agency now since 1970.

Marcia Robinson Lowry:

The two children who were placed with her were two and four years old when they were in placed with her in 1970.

They had not been placed as the result of court adjudication against the natural parents.

The natural parents had, in fact, left the children with a neighbor, and so that was considered a voluntary placement.

Those children were with Ms. Smith for four years, and Ms. Smith repeatedly expressed her desire to adopt those children.

She, in fact, thought they were free for adoption, because the natural parents had never visited those children.

After four years, the agency workers changed, as is the case usually in New York City; typically, the record shows, three or four or five workers will be involved in one foster-care situation.

All of the named foster parents had several workers, never the same worker.

The new worker came on the case, and the new worker decided that these two children should be removed from Ms. Smith’s home, because Ms. Smith had arthritis, which is —

Does the New York have a policy with respect to adoptions by unmarried people?

This woman is a widow, you say.

Marcia Robinson Lowry:

She is a widow, Your Honor.

And does New York have a policy about allowing individuals to adopt?

Marcia Robinson Lowry:

The policy is that single parents can adopt in New York City, and single-parent adoptions do take place, even with unmarried people.

Ms. Smith is, as you know, a widow, and Ms. Smith has been trying repeatedly to adopt these children.

Ms. Smith is the only permanent home these children are ever going to have.

Nevertheless, an agency worker decided that the children should be removed.

Ms. Smith had no kind of right to a hearing, nor did these children.

These children faced the loss of the only family they had ever known.

Ms. Lowry, I have a problem.

Maybe you can help me.

We have a child who is in Foster Family A who is about to be transferred to Foster Family B.

How can you represent both Family A and Family B, who are both foster parents?

Marcia Robinson Lowry:

Your Honor, what we are representing in this case is that there should be a hearing, that the decision-making process should be constitutionally adequate.

At the hearing itself, surely counsel for Foster Parent A could not represent Foster Family B.

But what the foster parent —

Do you represent both?

Marcia Robinson Lowry:

Your Honor, we are representing the foster family’s interest in a constitutionally adequate decision-making process.

So, you’re representing A and B.

Marcia Robinson Lowry:

We are representing the principle that there should be a decision-making process that is constitutionally adequate, and I don’t believe that there is any conflict between Foster Family A and Foster Family B.

Surely, Foster Family B has no interest in having the child that is coming to them unnecessarily traumatized by a removal from a home that is a valuable home to that child.

Marcia Robinson Lowry:

I don’t believe that there is any conflicting interest there at all.

All this case is about and all the foster parents are interested in is that the child’s interests be protected in the decision-making process by a constitutionally adequate procedure.

Well, yeah, by procedure; but who is going to draw up the standards or the rules?

Is that going to be a Federal Rule that the Court should impose?

Marcia Robinson Lowry:

No, Your Honor.

The District Court below specifically said that the Federal Court was only setting forth the need for a procedure at which State standards could be effectively applied.

Well, the State standard has already been enforced in these cases.

The agencies have decided that the children are to be returned to the home with respect to under the State rules.

Marcia Robinson Lowry:

No, Your Honor.

Excuse me, but the State standard varies.

When a child is going to go back to a natural family, there is one standard, which the Federal Court did not deal with, and when —

But in any event, in any of these situations, by the time that they’ve decided the child is to be returned, the State standard presumably has been satisfied in the eyes of the agency.

Is that right or not?

Marcia Robinson Lowry:

The agency thinks it has applied the State standard presumably.

All right.

Now, is all the Federal Court going to do or is all a trial-type hearing going to do is to make sure that that standard has been applied.

Is that all?

Marcia Robinson Lowry:

The Federal Court ordered that the decision be made with all of the information before it, and it found that the procedure that presently exists was not adequate.

Thus, the controlling standard is going to remain the State standard, is it?

Marcia Robinson Lowry:

That’s right, Your Honor.

There was absolutely no tampering with the State standard.

So if there is a proposed transfer from Foster Home A to Foster Home B, the procedure which you contemplate means that Foster Home A would be represented by Counsel, Foster Home B would be represented by a different counsel, the children would be represented by a third counsel and the State by a fourth counsel?

Marcia Robinson Lowry:

No, Your Honor.

What the District Court ordered was simply that there be some sort of a hearing held so that all information that was relevant could be presented to an administrative decision-maker.

But would there be lawyers at these hearings?

Marcia Robinson Lowry:

Not necessarily.

The District Court specifically did not deal with that and said, in fact, there is no requirement that counsel be available to represent these parties.

Well, then why is the hearing the District Court ordered any different than the one the State conducts now?

Marcia Robinson Lowry:

Your Honor, you are referring to the New York City procedure or the conference that the District Court found —

Take them both.

Marcia Robinson Lowry:

All right.

With regard to the conference that the District Court found unconstitutional, the problem with that conference was, number one, the decision-maker had been involved in the decision to begin with.

Number two, the agency as in the case of New York City that had made the decision need not be present.

Number three, the foster parent who was coming in to contest the decision did not necessarily know the reason for removal.

The record shows that in some instances, the foster parent isn’t even told, because the agency may consider it wise to withhold the information; and number two, it’s undisputed that the notice that the foster parent receives under the procedure declared unconstitutional contained no information whatsoever; and number three, the foster parents had no right to present any kind of witnesses.

All they had was the opportunity to come in and explain to the decision-maker already involved in the decision why the decision was wrong without knowing the basis for the decision.

In addition, if the agency had based the decision on any kind of documentary information, the foster parent who came in to contest that had no right to know what that was.

How about the New York City area?

Marcia Robinson Lowry:

The New York City procedure is a substantial improvement over that, it applies only to New York City, as the Court is aware, and it does not apply to the return-of-home situation.

The court below found that the New York City procedure was inadequate, because it was dependent upon the foster parent triggering the hearing when it was the child’s interests that the court was concerned with protecting.

And the court below, as I understand it, held that the foster parents themselves, whom you represent, did not have a constitutionally protected interest.

Marcia Robinson Lowry:

They reached only one of the foster parents’ claims.

They found that the foster parents had no constitutionally protected property interest in the foster-parent relationship.

They did not reach the foster parents’ liberty, interest or equal-protection claims.

They found it unnecessary, because they gave the hearing that the foster parents were concerned with and, in fact, the foster parents got the relief they asked for.

But they gave it purportedly at the behest of the children.

Marcia Robinson Lowry:

That’s correct, it was based solely on the children’s constitutional right, and the foster —

Yes, but based upon an identification of a deprivation of the children’s liberty, because as we all know, the Fourteenth Amendment is not even invoked until or unless the State deprives somebody of life, liberty or property.

Marcia Robinson Lowry:

That is correct, Your Honor.

And therefore as to the primary inquiry, therefore has somebody been deprived by the State of life, liberty or property; and that primary inquiry was answered here by the three-judge District Court, yes, the children have been deprived of liberty by the State.

Isn’t that correct?

Marcia Robinson Lowry:

That is correct, Your Honor.

That was indeed the basis.

Then and only then do we look to see what procedural, the guarantee of the Fourteenth Amendment, the due-process clause of procedural protection, what does it require in this case, and that is the question that the District Court answered.

Marcia Robinson Lowry:

That is correct, Your Honor.

That was what it was limited to.

There is arguably a property interest that has been deprived of the foster parents here, since they do get paid, don’t they?

They have a statutory entitlement to be paid by that State so long as the child is in their home, isn’t that correct?

Marcia Robinson Lowry:

That is correct, the District Court rejected that.

But that was defeasible as a matter of contract, is that what the…

Marcia Robinson Lowry:

Well, the District Court rejected that and found that there was no expectation of the continuation of the relationship.

Because it was contractually defeasible at the will of the State.

Marcia Robinson Lowry:

That’s right.

That’s right, Your Honor.

But they —

Ms. Lowry; when the children were put in the foster home, there was no hearing.

Marcia Robinson Lowry:

The natural parent had a right to a hearing.

The natural parent either consented to the child coming into the foster home or could object, and there was a full hearing available in the Family Court, that’s right.

There was no —

But they didn’t automatically get a hearing, did they?

Marcia Robinson Lowry:

They did if they did not consent.

They either had a hearing —

Well, automatically; I mean, without consent or anything.

Marcia Robinson Lowry:

That is right.

Well, let me put it another way.

They did not force the hearing on them, did they?

Marcia Robinson Lowry:

No, they did not.

They consented, they, unlike children —

Well, the children lost that liberty then, didn’t they, without a hearing?

Marcia Robinson Lowry:

They certainly did.

And then, when they get on to a foster parent, they get more rights than they had when they were with their biological parents?

Marcia Robinson Lowry:

Well, Your Honor, either —

Well, is that right?

Marcia Robinson Lowry:

Either — not exactly.

Not exactly.

It sounds the same to me.

Marcia Robinson Lowry:

Well, I will explain to you why it is not.

First, they took them away from their own parents without a hearing for the children.

The children did not get a hearing, did they?

Marcia Robinson Lowry:

Your Honor, they did not take them away from their own parents; their parents either gave them up or, if there was a hearing, the children were represented at the hearing by counsel.

Well, so far as the children were concerned, nobody paid anything about that at all so far as a full-blown hearing was concerned.

Now, you’re going to give the foster parents more rights than the biological parents had.

Marcia Robinson Lowry:

Your Honor, we are only going —

Where am I wrong on that?

Marcia Robinson Lowry:

Where you were wrong is that if the State has an obligation not to agree to have the parents give up the children unless the parent has a reason for doing that.

If a parent comes into the State and says, “I don’t like my child today; please take my child”, the State will not take that child.

If the parent wants to put the child in and there is no reason for it, then the child cannot be put in.

On the other hand, so the parent has to affirmatively say, “I can’t deal with my child”, and the State has to look and see that the parent, in fact, cannot.

And if the parent then agrees to put the child in, then there is no hearing; however, if the State comes to the parent and says, “I want to take your child”, and the parent says, “I’d rather you didn’t”, then there is a full-blown hearing, at which the child is separately represented in New York by a law guardian, who may say —

Well, am I correct, or do I read the opinion wrong?

Under this opinion, I think if a foster parent says, “I think that child ought to be transferred”, you still have to have a hearing.

Marcia Robinson Lowry:

No, Your Honor.

The order specifically exempts that situation.

The order applies — I beg your pardon?

Well, you read it differently.

Marcia Robinson Lowry:

Well, Your Honor, I believe that the —

Well, we’ll read it again.

The order or the opinion?

Marcia Robinson Lowry:

I am speaking of the order.

Is the opinion all that clear in your view?

Marcia Robinson Lowry:

No, Your Honor, it is not.

But the order specifically exempts that and of course exempts the situation in which some court has ruled.

Now, I wanted to —

Do the children ever get in on these hearings?

Are they personally present?

Marcia Robinson Lowry:

In which hearings?

The one that…

Any hearings.

Any of these hearings.

Marcia Robinson Lowry:

The children are generally not personally present.

Marcia Robinson Lowry:

If there is a court hearing of some sort, the judge may often question the child in chambers; but the child does not usually actually participate as a —

Ms. Lowry, what about the hearings ordered by the District Court?

Is the interest of the child to be represented at the hearing and, if so, by whom?

Marcia Robinson Lowry:

The District Court contemplated that the child’s interest would be represented and that the child —

By whom?

Marcia Robinson Lowry:

I must say, it’s not exactly clear from the order.

Well, isn’t that critical if the child’s liberty interest triggers the whole process?

Marcia Robinson Lowry:

I believe that it is, and as I read the opinion, the court contemplated that either the child would participate in the hearing if the child were old enough or that an adult representative would be appointed to represent the child’s interests at the hearing.

So if you have a child three or four years old, at least when these start, you would have to appoint an adult representative in every case.

Marcia Robinson Lowry:

Yes, Your Honor.

Which I take it would also mean that no one could waive the right to a hearing so that we would have to have a hearing before every transfer.

Marcia Robinson Lowry:

That is right.

Do you think that is the correct decision that we should reach?

Marcia Robinson Lowry:

I think that it is the correct decision under the circumstances that the District Court limited in its order; that is, I think that there should be hearing when the child has been in for a year or more and is going anyplace, and the foster parent has not requested the removal.

I think that some hearings can —

Why should it matter if the foster parent requested the removal?

Marcia Robinson Lowry:

Well, I think that that was simply a practical consideration.

I think that if 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.

But on the other hand —

What if it’s in the best interests of the child, though?

Marcia Robinson Lowry:

Well, it’s hard to contemplate a situation in which it would be in the best interests of the child to stay with people that had asked the child be taken.

But I believe your concern is why the court required a hearing in all other situations; that is, the foster parent may be silent, and it may be in the best interests of the child to stay there.

And so the District Court in those situations directed that a hearing be held.

It is quite obvious that at some of these hearings, the hearing may be very, very brief and fairly pro forma if there is a very good reason for the hearing and for —

But if you must locate an adult to represent the interests of the child, what kind of delays do you think will always be involved?

Marcia Robinson Lowry:

I think that the District Court directed that procedures be formulated, and I think the procedures can easily be formulated which will allow this to go forward within a ten-day time period.

I think that there is no problem with that and I think also the Court should be aware of the fact that despite the fact we’ve heard about thousands and thousands of hearings, in fact, that is not the case.

The record shows that the number of transfers at which the hearing would apply is not as great, and we —

How big is it?

Marcia Robinson Lowry:

Well, there were 1500 transfers from 1973 to 1974 of those children who had been in a foster home for a year or more.

Marcia Robinson Lowry:

The City estimates that approximately one-third of those transfers are at the foster parents’ request; therefore, they would be exempted.

So what we’re talking about at this is a thousand hearings a year and I think in addition —

A thousand transfers?

Marcia Robinson Lowry:

We are talking about a thousand transfers that have not been at the foster parents’ request.

And a thousand hearings and in the District Court’s judgment, a thousand hearings.

Marcia Robinson Lowry:

That is right, Your Honor.

That is what we are talking about.

We do not know exactly how many of these transfers would take place if there were some sort of procedure that required the agencies to justify the hearing.

Ms. Lowry, your argument, which I gather was accepted by the District Court, was that the foster-family relationship is akin in its protected status under the Fourteenth Amendment to the biological family, was it not?

Marcia Robinson Lowry:

That it was akin to it.

The District —

Not that it was identical, but that that was the basis for it.

Marcia Robinson Lowry:

Yes, Your Honor.

Now, if you had a biological family where the father and mother said, “We’re tired of having this natural kid around, we’re going to take him over to the local institution and dump him there”.

Would you think that the mere fact that that dumping was to occur at the initiative of the parents eliminated any requirement for a hearing?

Marcia Robinson Lowry:

No, I wouldn’t necessarily think that, Your Honor.

Well, it’s not State action; the due-process clause isn’t applicable.

Marcia Robinson Lowry:

Well, if the agency that is taking the child is taking the child to place —

It is the recipient.

It is not the Government that’s dumping the child; it is private people.

The due-process clause is inapplicable.

Marcia Robinson Lowry:

Well, then that’s the answer to the question, perhaps.

Well, then why is it different in the case of foster parents?

Why if they initiate the “dumping” may be unartful word, but I think it conveys the expression — should there be no hearing.

But if they object to it, there is a hearing?

Marcia Robinson Lowry:

I think that that is simply grounded in the reality of the fact that it is very hard to — first of all, the State is interfering here, the State is sanctioning the removal, and this child is in the custody of the State.

This child remains in the custody of the State, and so the State has a continuing concern in this child’s life.

However, if the facility, the home that the State has provided for the child, no longer wants to take care of the child, it is very hard to imagine that the State can require that.

Someone asked a question about whether or not this was the same as putting the child in summer camp or a boarding school.

I think that it is quite clear that it is not, and I do not think that analogy can be made.

Marcia Robinson Lowry:

The foster family is the best substitute that there is for a natural-family home.

I think everyone agrees that it is best for a child to remain in a natural family where the relationship is a viable one and the child is not being harmed.

I think there is no dispute about that.

These are children who have been out for a year or more, and the reason that the State has put the child in the foster home is because the State expects not just that the child is going to be housed and fed and not left to roam the streets at night, but because the child is going to have a family relationship.

And in fact, the foster family is the most likely family to adopt a child if a child later is adopted.

For example, Ms. Smith is now in the process of trying to adopt the foster children that have been with her since 1970.

Most of the adoptions in New York State of foster children are done by foster families.

So it is not merely a custodial relationship.

The State has, therefore, a very great interest; contrary to simply disrupting the relationship arbitrarily, a great interest in making sure that the decision to remove the child is made under constitutionally adequate procedures where everyone, including the child, has an opportunity to be heard.

But the State isn’t asserting any claim to a special hearing here.

It’s satisfied with what it had before your lawsuit was brought.

Marcia Robinson Lowry:

Indeed it is, Your Honor.

Indeed it is, and in fact, it raises as support for its position Meachum v. Fano, a situation in which the right of the State to transfer a person from one prison facility to another was upheld.

And we are saying that there is a conflict here between the interests of the child and the State’s assertion, because we believe that the State should be concerned about whether these decisions are being made with all of the information available.

Well, maybe so as a matter of policy; but getting back to the first preliminary inquiry, in any procedural due-process case must be an effort to identify whether or not there has been a deprivation of life, liberty or property.

Now, here, the District said surely there was no deprivation of life in this case, so set that aside.

The District Court found no deprivation of property.

The District Court did find a deprivation of the child’s liberty, the foster child’s liberty.

How would you identify the foster child’s liberty that’s being deprived in this case, in other words?

Marcia Robinson Lowry:

All right, I think it stems from several sources, and I will tell you what they are.

I am interested in the description of what it is.

Marcia Robinson Lowry:

All right.

The child is being condemned to suffer grievous loss without being heard.

No, let’s talk about liberty, because let’s talk about what the Fourteenth Amendment talks about.

Marcia Robinson Lowry:

Alright, the Fourteenth Amendment talks about certain areas in which the State may not interfere arbitrarily, and one of —

Life, liberty or property.

Marcia Robinson Lowry:

That’s right, and we —

And we’ve eliminated two of them, and we’re left with liberty.

Now, what liberty of the child is being taken away?

Marcia Robinson Lowry:

We are talking about the liberty of the child in the foster-family relationship.

Marcia Robinson Lowry:

One of the zones of privacy that the Fourteenth Amendment has been held to protect —

It doesn’t talk about — let’s try to answer my question first, and then you can explain all you want.

Marcia Robinson Lowry:

It is the child’s interest in the family relationship, Your Honor.

That’s a liberty interest.

Has that ever been identified as a liberty before in any other case anywhere?

Marcia Robinson Lowry:

The family relationship has repeatedly been identified as a liberty interest.

The child’s liberty, or has it been the parents’, the natural parents’?

Marcia Robinson Lowry:

There has never been a conflict between parent and child before; but in Stanley v. Illinois, the Court spoke about the family relationship, both from the standpoint of the father and from the standpoint of the child.

Well, as Armstrong v. Manzo, too; but that involved a parent’s interest, the natural parent’s interest.

This is a foster child’s liberty interest, and I’m interested in how you would describe that.

Marcia Robinson Lowry:

Well, there has not been a case in which this has specifically been held.

There is no question about that, and I am not suggesting that, but the child has a liberty interest in the relationship, which this Court has repeatedly found to be a protected relationship.

Well, where has this Court ever identified any such liberty?

Marcia Robinson Lowry:

This Court has identified the liberty interest in family relationships from the standpoint, as you say, of the natural family.

The natural parents, yes.

Marcia Robinson Lowry:

The natural parents, that’s right.

That’s in Stanley v. Illinois, Armstrong v. Manzo and, I ‘m sure, other cases.

Marcia Robinson Lowry:

That’s right.

I find it hard to believe that the Court would limit that only to the natural parent and not have the right flow two ways.

Children have been held to have liberty interests in other situations.

That is —

Certainly, if they’re put in jail, they have an interest in not being put in jail and if they’re a child, they could have all kinds of liberty interests.

Marcia Robinson Lowry:

They also have an interest in not being arbitrarily suspended from school, both based on their property interest and their liberty interest and in addition to that, Your Honor, I would like to point out that the Fifth Circuit just a month ago in a decision yet unreported found a liberty interest both from simply the foster parent and the foster child in an analogous situation, citing this case.

As my brother Stevens suggested in a question a few moments ago, if the foster child does have this liberty interest which is constitutionally protected by the procedural due process accorded by the Fourteenth Amendment.

Why isn’t that interest protected if the foster parents don’t want him in the home?

Marcia Robinson Lowry:

Well, I think that as a reasonable matter —

Well, it is still the same liberty interest if it is the child’s interest, isn’t it?

Marcia Robinson Lowry:

Yes, Your Honor, and —

Why on earth did the District Court say that no hearing is required if the foster parents don’t want him in the home?

Marcia Robinson Lowry:

Well, Your Honor, this Court could, of course, modify the decision in that respect.

Well, why do you think it did?

Why do you think the District Court did if the liberty interest was the kind of interest you’re describing?

Marcia Robinson Lowry:

The District Court did it after submission of affidavits by the City Defendants, in which they made a policy argument that there was no need to have a hearing and it would be counterproductive to have a hearing in a situation in which foster parents were requesting the removal and that, in fact, it might be destructive to a child to require the child to stay there during the hearing process when the foster family had affirmatively asked that the child to leave.

That was the basis for the District Court exempting that.

Well, then the liberty interest, I guess our description ought to be narrowed somewhat.

It’s an interest in remaining in a willing foster parent’s home.

Is that it?

Marcia Robinson Lowry:

That is right, Your Honor, in which there is a relationship that could be protected there.

I’d like to also address myself to another question that you raised earlier, and that is whether or not the state court review process is in effect when a child is being removed from a foster home.

It is not.

The state court review process is a review of status which takes place periodically.

Ms. Smith had had a review of foster-care status with regard to these children only two weeks before the children were to be removed from her home, and the record shows that the agencies do not require the court to order that the children be removed before the children actually are removed.

The Foster-Care Review status is a hearing in which the child is determined to remain in public care, in foster care generally, and in which the agency is free then to move the child anyplace, as they were preparing to do in Ms. Smith’s case so that there are not other available ways in which the liberty interest could be protected.

Well, what do you think is defective about the present procedures of ten days’ notice and then a sit-down conference?

Isn’t there an opportunity for a sit-down, at least a conversation with the agency?

Marcia Robinson Lowry:

Yes, there is.

And can the foster parents bring any information they have there?

Marcia Robinson Lowry:

They can bring information; but they don’t know the reason that the child is going to be removed, so they are somewhat handicapped.

Are they ever told?

Marcia Robinson Lowry:

They may or they may not be, and it may or may not be the reason for which the child is going to be removed; the record is very clear on this.

They don’t know the reason for the child being moved in many cases.

If the reason for the child being removed is based on a report in the record, they do not have access for that.

They have a person who is conducting the conference who has already presented them.

Well, do you agree that under State law that when a parent voluntarily turns over his child to the State to place in a foster home?

Do you agree that the understanding is or the State law is that the parent has the right to have the child back upon request?

Marcia Robinson Lowry:

The State law says that, that’s right; but there are certain exceptions.

I think that the situations vary enormously.

The Gandy children’s mother voluntarily placed these children with the State.

We are talking about situations in which at least a year has passed; often, much more time has passed.

I don’t believe that the State law says that the natural parents have an absolute right; in fact, State law has changed since this decision and has been modified somewhat.

Marcia Robinson Lowry:

So now a hearing that might be directed by this Court could look into a few other things, depending on the length of time the child had been out.

By the way, what standard do you think the agency in New York applies now when after a year there’s a removal from a foster home proposed and they give the foster parent notice?

What standard do you think the agency is applying in deciding to remove the child to return it to the parent?

Marcia Robinson Lowry:

I think the standard varies.

I think that the standard that would be articulated —

Well, what’s applied, do you find it in the statute or in the regulation?

Where do you find it?

Marcia Robinson Lowry:

If the statute says that, 383(2) says that an agency may remove a child from a foster home at the agency’s discretion.

That’s the standard in the statute.

Agencies generally operate under the rubric that they are acting in the best interests of the child, but the agency decision-making process —

Well, as far as the standard is concerned, that is all right with you, I take it?

Marcia Robinson Lowry:

That certainly is, but it is obviously a sufficiently vague and subjective standard at which a lot of subjective information is relevant so that —

Well, it may be; but you would not suggest that the standard be changed.

Marcia Robinson Lowry:


No, Your Honor, all we are suggesting is that there has to be some sort of an adequate procedure to determine whether the standard has been correctly applied.

I do not think that anyone at this point will assert that the standard was correctly applied with regard to the removal of Eric and Danielle Gandy from Ms. Smith’s home, and in fact the agency itself changed workers and reversed itself.

Is the agency decision in New York subject to any kind of judicial review?

Marcia Robinson Lowry:

No, the agency decision is subject to the conference that the District Court declared unconstitutional, and then the child may be removed.

After the child is removed, there is a full administrative fair hearing provided by Section 400 of the Social Services Law.

And then that is subject to judicial review.

Marcia Robinson Lowry:

And then that is subject to judicial review, perhaps many, many months and years down the road after the child has been subjected to an incorrect decision.

After Eric and Danielle, for example, could have been out of Ms. Smith’s home for a year-and-a-half by the time this case could have gotten into State Court to review whether or not Ms. Smith indeed had arthritis that made her incapable of caring for the children.

Do you think the District Court would require that the full trial-type hearing prior to removal be subject to judicial review?

Marcia Robinson Lowry:

Well, I do not think that they required a full trial-type hearing; but I think it was their intention, I think the opinion specifically says, that they contemplate this to be the final administrative decision.

So that judicial review could be obtained immediately, and if any stay was going to be granted that of course would be up to the court; it hardly would be automatic.

But I think that they were trying to make this decision-making process as speedy as possible rather than allowing the present procedure, which contemplates a conference first, the removal and then full-scale review after the harm has already been done, so that in a sense the harm is really irrevocable, because the child has already been subjected to a removal, which may have not been necessary and which constitutional standards we believe could require and make much more adequate in terms of making a decision for these children.

We are talking about children who are being separated from what may be the only home they know.

We’re talking —

Ms. Lowry, could I just put this other side of the problem to you for a moment?

Supposing the agency adopted a rule that in a single foster-parent situation — Ms. Smith was a 53-year-old widow.

A single parent over 52 or 53 years old suffering from a severe illness of some kind such as arthritis should not in the normal case retain custody of the child such as this.

Would such a rule be arbitrary?

Marcia Robinson Lowry:

I think it would not be subject to Federal Court jurisdiction.

Well, if that were adopted as agency policy and you impose the hearing, who shall decide whether or not the policy should apply in a he given case?

It is going to be an employee of the agency, isn’t it?

Marcia Robinson Lowry:

No, the person who would decide whether the decision was arbitrary would be a public official.

Now, who is this independent decision-maker?

That’s the question I was getting at.

What does the Constitution require with respect to the identity of the person who shall decide whether or not to apply the policy?

Marcia Robinson Lowry:

I think that the only thing that the Constitution requires here is that the decision-maker not be previously involved in the decision.

But where does the Constitution require that?

Why isn’t it perhaps wiser to have a person who has some background with the family and the child and all the rest making the decision?

Marcia Robinson Lowry:

Well, I think — first of all, there is nothing to require that this decision-maker not be someone with some background in Social Services.

But because —

No, but with knowledge of the facts of this particular case.

Why does that disqualify a person otherwise independent, having no financial interest, no interest other than the wellbeing of the child?

Marcia Robinson Lowry:

Because the people who then appear before the decision-maker who want to present the information to the decision-maker are burdened by the fact that the decision-maker has knowledge of a great deal of information that the other people may not know of and may not have an opportunity to refute.

If the Social Services’ official has been involved in the decision, as the record shows many of them were, then they may have access to a great deal of information that, in fact, is not accurate; and when the family and the child’s representative or the child comes in to explain why the decision is incorrect, then the people who come in to explain that will not know about what information the decision-maker has in his or her head, and they can’t refute it.

That is why it is important the decision-maker make a decision based on information that’s presented then that each side can have an opportunity to refute.

This doesn’t require lawyers.

It can be as informal as people sitting down and talking.

But the decision cannot be made fairly unless all parties know what the other side has to say and have an opportunity to say, “This fact is wrong, but this fact is right” or “The fact is half-right and half-wrong”.

Ms. Lowry, I am still in trouble.

Is this person a person outside of the agency?

Marcia Robinson Lowry:

The person is an employee of the Social Service district, and if the child is in care with the Social Service district —

Well, I mean, I’m talking about the one you want.

Will you settle for that?

Marcia Robinson Lowry:

Yes, Your Honor.

I think we are talking about the same kind of decision-maker as in Goldberg.

The only one you want is somebody that didn’t handle this particular case.

Marcia Robinson Lowry:

We want someone who was not involved in this particular case who will make a decision based on the information presented to them at the time everybody has an opportunity to hear the information.

Well, is the man and woman at the conference such a person?

Marcia Robinson Lowry:

I beg your pardon?

At the conference itself.

Marcia Robinson Lowry:

At the conference, no.

The person at the conference, the record shows, usually was involved in the decision-making at the initial stages.

But you would settle if it was another equivalent person — for example, somebody had another authorized case, but didn’t have this one.

Marcia Robinson Lowry:

That is right, but we would —

You’d be satisfied.

Marcia Robinson Lowry:

Yes, but we would say that it cannot be someone from the private agency; it has to be a public official, as the conference now requires.

These are private agencies that are publicly funded and are delegated with the responsibility of taking care of these children.

It is a public function, and we would say that an in-agency conference would not be adequate; but a Social Service agency conference just as was contemplated in Goldberg v. Kelly would be adequate.

Well, you don’t want to overhaul the whole Social Services.

Marcia Robinson Lowry:

No, Your Honor, not at all.

We are asking only for the same kind of decision-maker as is presently provided in the revised City procedure.

We are not asking for a different kind of decision-maker.

Well, all these arguments go to what kind of piece of legislation the State of New York ought to have dealing with this sensitive subject.

Marcia Robinson Lowry:

Well, Your Honor, I believe not.

The District Court said that the exact details of the procedure should be worked out by New York; but the question of whether or not there should be a procedure and whether or not it should satisfy minimal due process with the right of everyone to be heard I believe is a Federal issue and is a constitutional issue.

And I believe that these children have been condemned to suffer grievous loss, they do have a constitutionality protected interest in the relationship, in this family relationship, which may be their only family relationship and their only hope for permanence.

Well, what I can’t understand is that they are going to —

Who are you representing, the interests of the children or the foster parents?

Marcia Robinson Lowry:

I am here representing the interests of the foster family.

As you know, Your Honor, I represent the foster parents.

They have an interest in the foster-family relationship.

Well, you were just speaking about the children’s rights.

I thought your friend was representing their interests and the State’s.

Marcia Robinson Lowry:

Well, it is our position that we represent the foster children’s rights as articulated by the District Court.

Ms. Buttenwieser, as you know, has not requested such relief; the foster parents have requested such relief, and we believe we have standing to raise the children’s interests with regard to this right.

Mr. Justice Rehnquist, I’m sorry, I did not hear your question.

William H. Rehnquist:

You had a problem common on many counsel, being peppered by more than one member of the Court at a time.

What is the issue that this hearing is supposed to resolve?

Marcia Robinson Lowry:

Alright, with regard to the most common situation, 80% of the situations in which the child is being removed from the foster home and to be transferred someplace else.

The hearing is to decide whether the transfer is in the child’s best interests.

William H. Rehnquist:

And is the reason that that is because New York says that is what the issue is?

Marcia Robinson Lowry:

New York says that children can be removed at the agency’s discretion.

I believe that New York also takes as a matter of legislative policy the decisions made with regard to children should be made in their best interests.

William H. Rehnquist:

But now, is this question to be answered at the hearing one that has its direct source in New York law, or is it superimposed as part of the constitutional guarantee by the District Court?

Marcia Robinson Lowry:

No, the District Court did not —

William H. Rehnquist:


Marcia Robinson Lowry:

I’m sorry.

The District Court did not deal with standards at all.

The District Court was very explicit, the questions to be answered at the hearing about what’ in the best interests of the children are a matter solely of State policy.

There is not Federal policy that is imposed by the District Court decision.

The District Court says that the hearing is only to adequately effectuate State policy and that it is constitutionally required, but to effectuate State policy and not to impose any kinds of Federal policy.

The question to be answered when the child is going to be returned to a natural parent is the question that is detailed by State law, it is a-State law standard that has to be applied then, and it is a different standard than when the child is going to go to another foster family; but it is determined by State law.

William H. Rehnquist:

And each of these standards is now applied by various New York public agencies, but just not in the same manner as the District Court thinks they ought to be applied.

Marcia Robinson Lowry:

They are not applied in a constitutionally adequate manner, and the decision is not reviewed in any kind of a constitutionally required manner until after the child is out of the home.

It is reviewed after the child is out of the home.

Ms. Lowry, could I ask another question?

The foster parents’ status as having authority to receive foster children is something that’s renewed periodically, is it?

Marcia Robinson Lowry:

Yes, it is.

Does the child have any right to protest the withdrawal of a license of a foster home?

Marcia Robinson Lowry:

The child does not under New York law, but that would be — that would likely —

This could happen, could it not, for example, if they might adopt a rule that no one over 50 years of age with arthritis can be a foster parent?

Marcia Robinson Lowry:

The State could do that, that’s right.

And without any notice or a hearing to a child who might be affected by such a decision.

Marcia Robinson Lowry:

Well, I think that if a child were in a foster home and there was such a relationship, then the fact that the license was going to be withdrawn would be an issue at the hearing; and I believe under the District Court decision that would require a hearing, and I believe even under the existing procedures.

There is presently a procedure where that foster parent could challenge the determination of withdrawal of the license; but that would be again after the child is removed.

Section 400, I believe, contemplates that; but that again is after the harm has been done, the unnecessary harm.

But the logic of the District Court’s opinion would seem to require that the child whose liberty was going to be deprived by the laws of license by the foster family would be the party interested in such a hearing.

Marcia Robinson Lowry:



Marcia Robinson Lowry:

Yes and —

And he or she would have a right to procedural due process accorded by the Fourteenth Amendment before New York could cancel a license of a foster parent…

Marcia Robinson Lowry:

Yes, and I believe —

His or her foster parent.

Marcia Robinson Lowry:

That’s right.

I believe that’s a situation covered by the District Court’s order, because in that case the reason for the removal would be the cancellation of the license, and then there would be a hearing at which it could be determined whether it was in the best interests of the child then to be removed from that foster home.

Thurgood Marshall:

Ms. Lowry, suppose the District Court in another case says that before the child surrendered by its own parents can be accepted by the State, there must be a hearing.

Would you complain about that?

Marcia Robinson Lowry:

Not at all, Your Honor.

In fact —

Thurgood Marshall:

You would want that.

Marcia Robinson Lowry:

We would want that.

Thurgood Marshall:

Well, I mean, in other words, you’re saying that nothing can be done concerning the child without a hearing.

Marcia Robinson Lowry:

No, we’re not saying nothing can be done without a —

Thurgood Marshall:

Well, can the foster parent paddle the child without a hearing?

Marcia Robinson Lowry:

Yes, as long as it’s not excessive.

Thurgood Marshall:

That doesn’t have anything to do with liberty at all, does it?

Marcia Robinson Lowry:

No, Your Honor, I don’t think it does; I think that that becomes a State-law issue whether —

Thurgood Marshall:

(Inaudible) I didn’t hear it.

Marcia Robinson Lowry:

No, Your Honor, I think that the only time a hearing is required is when there is going to be a substantial deprivation to the children, and we think that children should not come into foster care unnecessarily.

We think that the best thing for a child is to stay with the natural family under most circumstances; we have no quarrel with that.

All we’re saying is that after time has passed and after a child has been in the relationship for a year or more, the child then has an interest in the relationship and has an interest in not being subjected to arbitrary deprivation of that relationship.

We’re not talking at all about substantive standards when we’re talking about the natural family.

Thank you, Your Honor.

Warren E. Burger:

Very well.

Ms. Marcus?

Maria L. Marcus:

Your Honor, let me just point to the record to correct a few errors that were made in appellees’ argument.

Maria L. Marcus:

So far as the statistics are concerned, Page 90(a) of the Appendix contains a projection based on ’75 and early ’76 figures, which state that as to New York City there would 4,200 removals or changes of status.

Half of those would be children discharged from foster care so that we’ve got half being transferred within, half being discharged out.

Now, in figures by the Children’s Child Welfare Information Service, which is a computerized service that keeps records on this for the agencies and for the City.

1975 figures were attached to interveners’ reply brief, and that showed that of the discharges — and now, we are talking about half of transfers, half are within the system, half out — of the half that goes out.

In the year 1975 of the group of children in foster care for more than a year, 48.1% returned to the natural parents.

So those are the statistical facts as shown by the record.

Well, what about appellees’ argument that there is no liberty interest or that if there is one all the process that is due is being afforded?

Maria L. Marcus:

Both, Your Honor, there can’t be a liberty interest, because if there were one it would collide head-on with the one already declared by this Court to the natural family, first for the reason that I stated before, that the standard has got to change.

If we’re going to have —

Does this case only involve cases where the natural parent wants the children back?

Maria L. Marcus:

No, but the point is that once you declare a liberty interest in the foster-care relationship, it is going to change the…

Well, what if a natural parent isn’t involved and it’s just the State has decided to change the custody?

Maria L. Marcus:

The State cannot guarantee a liberty interest in a relationship out of which one party can walk at any time.

The natural parents —

Well, would you say anybody could complain at all if New York decided, well, we’ve been giving too much due process here.

We are going to discontinue foster care at the discretion of the agencies without any hearing, without any notice, without any sit-down discussion, without any trial-type hearing at all, and not subject to any judicial review whatsoever.

We’re just going to transfer the children.

Maria L. Marcus:

Well, that would abrogate 392, of course.

Well, I just said let’s assume New York decides to do it.

Maria L. Marcus:

That decides to abrogate existing statutes.

I think New York is not under any constitutional obligation to provide any foster-care services.

This is —

Well, that isn’t what I asked you.

They are providing it, and they are going to make, say, 2,000 transfers a year in New York City from one foster family to another and without any hearing, without any notice, without explaining anything at all and without any judicial review.

Now, you would say they could do that, because there is no liberty interest whatsoever.

Maria L. Marcus:

Yes, I would say that although as a matter of policy, obviously that would be undesirable and would not be done under New York law.

You cannot have a liberty interest in a relationship in which one party has no obligation whatever to remain with it.

Imagine what would happen if a natural parent or an adoptive parent decided to walk out of a relationship.

They would be jailed, and they would be publicly stigmatized.

There is a great difference between an adoptive and natural parent and the foster parent here, there is no obligation.

Maria L. Marcus:

Ms. Goldberg was obligated only so long as she took the State’s money.

Would you think that State could without any notice whatsoever and without any hearing terminate the parents’ rights once —

Maria L. Marcus:

The natural parents’ rights?


Maria L. Marcus:


That is because why?

Maria L. Marcus:

Because this Court has declared that there is a constitutional right for a natural family to be together, and under this Court’s decision it would not —

Do you think the child’s —

Maria L. Marcus:

The decisions would not be possible to abrogate the rights of a natural family.

Do you think the child himself would have an interest in that interest?

Do you think the child would have standing?

Maria L. Marcus:

Well, as a member of the natural family, he would partake of that interest; but that does not occur here.

And I might add as to the second part of your question —

So you agree that the child certainly has a liberty interest in remaining with his natural family.

Maria L. Marcus:

Yes, this Court has so declared and we are under this Court’s mandate.

Now insofar as —

But not with respect to remaining with any foster family.

Maria L. Marcus:

Foster family because of the complete difference in that kind of relationship.

Suppose the parents are dead, and the State has custody of the child.

Maria L. Marcus:

The State always has custody in the case where the child is in foster care, and then of course the foster parents by statute have a mandatory statutory preference to become the adoptive parents in that situation

Well, does anyone have standing — would anybody have any kind of standing whatsoever or any interest that you would recognize to question the State’s decision in terminating a particular foster parent?

Maria L. Marcus:

Well, I want to correct also a misconception about 392, which came up in appellees’ argument, 392 of the Social Services Law.

The foster parent can ask the court to maintain that child in his home.

It does operate as a possible pre-removal judicial hearing, and there are a number of cases cited in our brief where that was done.

It does not have to wait until years and years later.

This is a pre-removal judicial hearing which is available.

And in what court?

Maria L. Marcus:

And that is in the Family Court of the State of New York.

That’s not the United States District Court.

Maria L. Marcus:

No, this is in the Family Court of the State of New York, and of course with usual appeals and eventually to this Court if there’s something amiss.

Maria L. Marcus:

Now, Justice Stevens brought up the question of whether the decision below contemplated the child having some role, the decision below didn’t say so.

But under 392, this judicial proceeding that we have under the Family Court Act, the child is there, and it’s presumed that he will be because there’s a statutory section in that, 392(6), which says that the court may dispense with the presence of the child.

So it obviously is contemplated that the child will be there and will be heard unless the court feels that it’s not necessary.

Warren E. Burger:

Your time has expired, Ms. Marcus.

Thank you ladies.

The case is submitted.