Smith v. Organization Of Foster Families For Equality & Reform

431 U.S. 816 (1977)

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Nature of the Case

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Facts

Under New York law, children may be placed in foster care either by voluntary placement or by court order. Most foster care placements are voluntary. Voluntary placement requires a signed written agreement by the natural parent or guardian transferring the care and custody of the child to an authorized child welfare agency. Standard forms are used for the most part. The agreement may provide for the return of the child at a specified date or upon occurrence of a particular event and if it does not the child must be returned by the agency in the absence of a court order within 20 days of notice from the parent. The agency commonly puts the children in foster homes. The foster contracts the agency has with the parents expressly reserves the right of the agency to remove the child on request. The foster parent may cancel the agreement at will. Children may also enter foster care by court order. The issues from this case involve the determination to remove the child from the foster home either because the agency has determined it would be better to transfer the child to another foster home or to return the child to the natural parents in accordance with the statute or placement agreement. Most of the children removed are put in other foster homes. The procedures for a challenge of foster to foster transfer are different to those when the removal is to the natural parent. A foster to foster removal gives 10 days written advance notice and if there is an objection then a conference with social services is arranged. A decision must be made in writing within five days of the conference. An appeal may be had for an adverse decision in a full adversary administrative law hearing which is subject to judicial review. The removal is not automatically stayed pending the hearing and judicial review. Family court has authority to review the petition of a foster parent if the child has been in foster care for 18 months or longer. There is considerable evidence that many voluntary placements are coerced and that the system is biased against the poor. Children often stay in temporary foster care for over four years. Many of the younger children develop deep emotional ties with their foster parents. These emotional ties do not seem to be regarded as an obstacle for transfer from foster to foster. The district court found the current foster to foster transfers when the child was with one family over one year inadequate and ordered a hearing to be held with all concerned parties before a foster to foster transfer could occur. A divided three-judge District Court concluded that 'the pre-removal procedures presently employed by the State are constitutionally defective,' holding that, 'before a foster child can be peremptorily transferred from the foster home in which he has been living, be it to another foster home or to the natural parents who initially placed him in foster care, he is entitled to a hearing at which all concerned parties may present any relevant information to the administrative decision maker charged with determining the future placement of the child.' The Supreme Court granted certiorari.