Judge Extends Constitutional Rights for Foster Parents and Children

September 18, 1998

Judge Extends Constitutional Rights for Foster Parents and Children

By NINA BERNSTEIN

EW YORK -- Some foster parents and children have the same constitutionally protected rights to their relationship as birth parents when the authorities try to remove children from a home, a federal judge ruled in a decision released Thursday.
The judge, Kimba M. Wood of U.S. district court for the southern district of New York, limited her ruling to foster children whose birth parents' rights already have been terminated, and to foster parents who have cared for their foster child continuously for more than 12 months since the child's infancy and who have agreed to adopt the child.
But the 50-page decision expands the limits of the shifting constitutional definition of family, and potentially applies to thousands of children now in preadoptive foster homes in the eight counties of the court's district.
Children's rights lawyers hailed the decision, which holds that such foster parents have due process rights to contest a removal promptly. They say it is a shield against the power of New York City's Administration for Children's Services and its agents to arbitrarily break up relationships that often have the same emotional strength as biological bonds.
But a lawyer representing the city and a foster care agency sued in the case said that the work of foster care agencies would be made more difficult by the ruling. The lawyer, Christopher Cloud, said the same agencies that face lawsuits for failing to remove children quickly enough in cases of suspected abuse or neglect by foster parents would now also be vulnerable to lawsuits for removing children too quickly in such cases.
Since 1977, when the U.S. Supreme Court declined to decide whether there was a constitutionally protected right in the relationship of foster parent and child, at least 10 court decisions across the country have ruled against individual foster parents who tried to assert such rights.
Martin Guggenheim, a professor of law at New York University and an expert in child welfare law, said Wood's decision represented an important new contribution to the question of who best represents the interests of children without parents.
"I see this as potentially good for children," he said. "This is a recognition that when children no longer have parents it's a good thing for caregivers who have a significant relationship in their lives to be given an opportunity to be heard before their placement is changed."
He added: "The judge in this case wasn't saying you can't remove foster kids from foster parents. The judge was saying due process can be violated if it's done cavalierly."
The decision came in a lawsuit stemming from the sudden removal of a 4-year-old boy from the Bronx home of Sylvia Rodriguez, who had been his foster mother since he was 1 month old, and who was in the final stages of adopting him.
The child, Andrew, had been abandoned by his biological parents at birth and placed in Ms. Rodriguez's home by Cardinal McCloskey Children's and Family Services, a foster care agency under contract to the city.
Prior to Andrew's removal, the agency viewed Ms. Rodriguez as an affectionate and caring foster parent, the judge wrote, and in August 1993, it entered into an adoptive placement agreement with her. But on March 18, 1994, before the adoption paperwork had been finalized in court, a caseworker who went to the home for a scheduled visit found only Ms. Rodriguez's 12-year-old grandson, Edwin, supervising Andrew and his 3-year-old foster brother, Thomas Green.
After waiting for two hours and consulting his supervisor, the caseworker removed the two younger children, feeling that Edwin, a special education student, was unable to manage them alone.
The foster care agency filed a report of suspected abuse or maltreatment, and the city began an investigation. For three months the foster mother had no chance to contest his removal and was denied the right to visit Andrew, who was transferred to another foster home.
Eventually, however, after an independent review hearing, the city found no neglect and ordered the child returned to the care of Ms. Rodriguez, who adopted him on Aug. 17, 1995. She then filed a suit seeking damages against the agency and the city.
The city and the agency had asked Judge Wood to summarily dismiss Ms. Rodriguez's lawsuit, in part on the grounds that as a foster parent she had no constitutionally protected rights in the matter.
The lawyers for the plaintiffs, who took the case pro-bono, said the ruling allowed the case to proceed to trial against the city and the agency on compensation for the harm done to Ms. Rodriguez.
"You can imagine what it's like to have your 4-year-old ripped out of your home and not being able to speak with him and visit him," said one of Ms. Rodriguez's lawyers, Howard Seife. "It was devastating."

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