Smith v Foster Families for Equalities and Reform Appendix
Public Court Documents
October 12, 1976
322 pages
Cite this item
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Brief Collection, LDF Court Filings. Smith v Foster Families for Equalities and Reform Appendix, 1976. c9302eb5-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b9129bc3-b7bc-4be4-b57e-d4285fe7a19d/smith-v-foster-families-for-equalities-and-reform-appendix. Accessed July 30, 2025.
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A P P E N D I X
IN THE
gutprpm? (Emtrt of tip Umfrfc §>tata
O c t o b e r T e r m — 1976
Nos. 76-180, 76-183, 76-5193 and 76-5200
J. HENRY SMITH, individually and as administrator of the N E W YORK
H UM AN RESOURCES ADM INISTRATION, et al.,
v.
Appellants-Defendants,
ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND
REFORM, etc., et al.,
Appellees.
BERNARD SHAPIRO, individually and as Executive Director of the New
York State Board of Social Welfare, et al.,
v.
Appellants-Defendants,
ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY AND
REFORM, etc., et al.,
Appellees.
NAOM I RODRIGUEZ, etc., et al.,
Appellants-Intervenors,
v.
ORGANIZATION OF FOSTER FAMILIES FOR EQ U ALITY AND
REFORM, etc., et al.,
Appellees.
DANIELLE and ERIC GANDY, etc, et al,
Appellants-Plaintiffs,
v.
ORGANIZATION OF FOSTER FAMILIES FOR EQUALTY AND
REFORM, etc, et al.,
Appellees.
On A ppeal from the U nited States D istrict Court
for the Southern D istrict of N ew Y ork
FILED AUGUST 9, 1976
PROBABLE JURISDICTION NOTED OCTOBER 12, 1976
I N D E X
PAGE
Relevant Docket Entries ................................................ 3a
Second Amended Complaint* .......... ......... ....... ........... 13a
Exhibit A ...................................................................... 37a
Order Convening Three Judge Court ........................... 39a
Answer of New York State Defendants*..................... 41a
Intervenor Defendants First Amended Answer and
Cross Claim* .................................................................. 49a
Trial Exhibit “A ” .................................................... 63a
Trial Exhibit “ B ” .......... - ................. ............... ...... 65a
Affidavit of Naomi Rodriguez ....... ........ _...... *..............- 68a
Affidavit of Sara Ruff .............................................. ..... 73a
Exhibit “ A ” .......... ................... ........._______ 76a
Exhibit “ B ” ................ 79a
Answer o f New York City Defendants* ..................... 82a
Affidavit of Carol J. P a rry ....... .................. ... .......... . 87a
Child Caring Agency Request For Approval Of:
(Form W-853, 8 pages) ............................ .......... 95a
Excerpts from Deposition o f:
Dr. Shirley Jenkins ................................ 96a
Eugene A. Weinstein, Ph.D............................ 105a
* Indicates Affidavit of Service omitted in printing.
n I N D E X
PAGE
Excertps from Deposition of:
Robert Catalano ............ - ......—- ................. - ......... 114a
Dr. Stella Chess ............— .... ............................. 119a
Mary Jane Brennan .................................. - .......... 132a
Agreement to Remove Child From Foster
Family Care ...... ..............— ..................— 138a
Peter Mnllany .... .......... ........... ..... ......... ............... 141a
Curriculum Vita—David Fanshel ................. 147a
David Fanshel ........... .......... ..................... ....... ..... 158a
Joseph Goldstein ......................... - .......................... 191a
Albert J. Soln it.......................................................... 207a
Exhibit No. 1, Resume of Henry Ulmann
Grunebaum M.D....................................... 236a
Dr. Henry Uhnann Grunebaum ........................... 247a
Excerpts from Transcript of Trial on March 3, 1976 - 262a
Dr. Marie R. Friedman ....... ................................. 262a
Florence Creech ........................... ........................— 272a
Jane Edwards ..................................... 286a
Christiane Goldberg ........... 293a
Dorothy Lhotan ..................... 300a
Cheryl Lhotan ........ .............. .............. ......... ...... H 304a
Naomi Rodriguez .............. 307a
IN THE
i>ujrnmt? (Emtrt nf i\}% lultrii
October Term— 1976
Nos. 7S-180, 76-183, 76-5193 and 76-5200
--------------------- _♦-----------------------
J. H enry Smith , individually and as administrator of the
New Y ork City H uman R esources A dministration, et al.,
Appellants-D ef endants,
—v.—
Organization of F oster F amilies for E quality and
R eform, etc., et al.,
Appellees.
Bernard Shapiro, individually and as Executive Director
of the New York State Board of Social Welfare, et al.,
Appellants-Defendants,
—v.—
Organization of F oster F amilies for E quality and
R eform, etc., et al.,
Appellees.
2a
Naomi R odriquez, etc., et al.,
Appellants-Intervenors,
- y . —
Organization of F oster F amilies for E quality and
R eform, etc., et al.,
Appellees.
Danielle and E ric Gandy, etc., et al.,
Appellants-Plaintiffs,
-v.-
Organization of F oster F amilies for E quality and
R eform, etc., et al.,
Appellees.
A P P E N D I X
3a
Docket #
1 5- 9-74
2 5-13-74
3 5-23-74
5 5-31-74
3 6- 5-74
Relevant Docket Entries
Filed Complaint and issued summons.
Filed pltf’s affdvt. and Order to Show
Cause for a T hree-JuDGE-Court and why
defendants should not he enjoined. De
fendants are temp, restrained from remov
ing Eric and Danielle Gandy from the
home of Madeline Smith. Posting of Se
curity is waived.— ret. 5-17-74 at 2 PM in
Room 512— Carter, J.
Filed pltfs. affdt. and notice of motion for
an order j o in ing Ralph and Christine Gold-
bert (sic.) on their own behalf and as next
friend for Rafael Serrano as pltfs. in this
section (sic.) ret. on: May 31, 1974.
Filed stip. and order that the T.R.O. issued
on 5-9-74 he continued until determination
of pltf’s motion to convene a three-judge
court and if motion is granted until the
hearing before such a three-judge court:
counsel for deft. Dumpson, Beine & Dali
to not appose pltfs’ motion to join as plain
tiffs Ralph and Christine Goldberg on
their own behalf and as next friend of
Rafael Serrano—the return of pltfs’ mo
tion is adj. to 6-5-74— Carter, J.
Filed memo endorsed on pltf’s motion to
join parties: Motion granted by consent.
So ordered— Carter, J. m/n
4a
12 7- 5-74
14 7- 9-74
Docket #
9 6-25-74
16 7-15-74
31 8-14-74
Relevant Docket Entries
Filed affdvt. and notice of motion on be
half of Naomi Rodrignez, Rosa Diaz, Mary
Robins and Dorothy Nelson Shabazz to
intervene—ret. 7-24-74
F iled Second A mended Complaint
Filed order designating in addition to
Judge Carter, to hear and determine said
cause as provided by law: Edward Lum-
bard, C.J. and Milton Pollack, D.J.—Kauf
man, Ch.J., C.A. m /n
Filed pltf’s affdvt. and Order to Show
Cause why an order should not be entered
granting pltf. preliminary injunction
against defts. Order that pending the hear
ing and determination of tiffs motion, that
Joseph D’Elia be temporarily restrained
from removing Cheryl, Patricia, Cynthia,
and Cathleen Wallace from the home of
Dorothy and George Lhotan, and it is fur
ther ordered that posting of security is
waived—personal service by 7-8-74 at 12
noon.— ret. 7-18-74 at 10 AM in Room 310—
Carter, J.
Filed pltfs affdvt. and notice of motion
for class action.*
* All motions were contested unless otherwise noted.
5a
Relevant Docket Entries
33 8-19-74 Filed order that plaintiffs’ motion for the
convening of a three-judge court pursuant
to 28: 2281 and 2284 is granted; ordered
that pltfs’ motion to join Dorothy and
George Lhotan, and Cheryl, Patricia, Cyn
thia and Cathleen Wallace as parties plain
tiff, and Joseph D’Elia, Commissioner of
the Nassau County Department of Social
Services, Bernard Shapiro, Executive Di
rector of the N.Y. State Board of Social
Welfare, and Abe Lavine, Commissioner
of the State Department of Social Services
as parties defendant is granted; ordered
that deft. Joseph D’Elia he restrained from
removing Cheryl, et al. from the home of
Dorothy and George Lhotan, pending hear
ing before the three-judge court and a de
termination of pltfs’ motion for a prelim
inary injunction. Further ordered that the
motion of Naomi Rodriguez, Rosa Diaz,
Mary Robins and Dorothy Nelson Shabazz
to intervene as defendants is granted solely
for the purpose of litigating the issues
contained in pltfs’ 2nd amended complaint;
. . . — Carter, J. m /n
36 9-24-74 Filed A nswer of defendants Bernard Sha
piro, indiv. and in his capacity as Execu
tive Director of the N.Y. State Board of
Social Welfare and Abe Lavine, indiv. and
in his capacity as Commissioner of the
N.Y. State Dept, of Social Services.
Docket #
6a
42 10-17-74
43 10-17-74
46 10-25-74
51 11- 8-74
59 12-11-74
Docket #
37 10-15-74
62 12-31-74
Relevant Docket Entries
Filed plaintiff’s affdvt. and notice of motion
to declare N.Y. Social Services Law §§
383(2) and 400 and Title 18, N.Y. Codes
Rules and Regulations §450.14 (now re
numbered §450-10) unconstitutional, etc.—
ret. 10-29-74 at 4:00 PM.
Filed Notice of Motion for leave to join
as additional party intervenor deft, and to
amend Answer.
Filed Motion of Intervenor Defendants to
certify class.
Filed Defts Lavine and Shapiro’s Affdvt.
& Notice of Motion for judgment on plead
ings.
Filed Plntfs Affdvts. and Order to Show
Cause for hearing on plntfs Rule 17(c)
Motion.
Filed Opinion 41563 of Carter, J., denying
motions to continue N.Y.C.L.U. as counsel
to foster children or to appoint Dr. Ken
neth Clark as guardian ad litem to chil
dren. Court affirms Ms. Buttenwieser as
independent counsel to children.
Filed by Attorneys Marcia Robinson
Lowry and Peter Bienstoek notice of ap
peal to the IJS'CA for the 2nd Circuit from
7a
Docket #
64 1- 3-75
73 2-28-75
74 3- 5-75
84 6-25-75
Relevant Docket Entries
order of 12-11-74, disqualifying counsel to
the plaintiffs herein from further repre
sentation of plaintiffs Rafael Serrano,
Danielle and Eric Gandy, and Cheryl, Cyn
thia, Patricia and Cathleen Wallace, copies
mailed to Helen L. Buttenwieser, Esq., Stan-
ler Kator, Esq., Elliot Hoffman, Esq., Jack
Olchin, Esq., Louise Ganz, Esq.
Piled by pltfs’ Foster Children Danielle
and Eric Gandy, Raphael Serrano and all
other children similarly situated for an
order (a) desolving restraining order (b)
terminating the effect of a stip. entered
into in lieu of a stay which presently pre
vents the Catholic Guardian Society and
the N.Y. City Department of Social Serv
ice from making a determination concern
ing the named plaintiff children who are
their responsibility, etc.— ret. 1-10-75.
Filed order that the trial of the T hree-
Jtjdge Court be held on 3-3-75 at 10 AM—
Carter, J. m /n by chambers.
Piled true copy of USCA stip. and order
that the appeal dated 12-31-74 is hereby
withdrawn without prejudice.
Filed Transcript of record of proceedings,
dated March 3, 1975.
8a
Relevant Docket Entries
Docket #
89 10- 1-75 Filed deposition of deft, by Eetta Fried
man—dated 4-1-75 m/n.
90 10- 3-75 Filed deposition of Dr. Joel Kovel on
April 2, 1975.
91 10- 3-75 Filed deposition of Eugene A. Weinstein,
Ph.D. as a witness on March 18, 1975.
92 10- 3-75 Filed deposition of Henry Grunebaum on
April 10, 1975.
93 10- 3-75 Filed deposition of David Fanshel on April
8, 1975.
94 10- 3-75 Filed continued deposition of David Fan-
shel on May 12, 1975.
96 10- 9-75 Filed examination of defts Mary Jane
Brennan dated 4-9-75. m /n
98 12-22-76 (sic) Fid Deposition of Joseph Goldstein
taken on 4-1-75.
99 3-22-76 Fid Opinion No. 44102. . . . From TJ.S. Dis
trict Court. . . . In summ., therefore, we
conclude that N.Y. Social Services Law S S
383(2) and 400, and N.Y.C.R.R. S 450.14, as
presently operated, unduly infringe the con
stitutional rights of foster children. Defts
are enjoined from removing any foster chil
dren in the certified class from the foster
homes in which they have been placed un
9a
Relevant Docket Entries
less and until they grant a pre removal
hearing in accord with the principles set
forth above. Of course, our decision today
does not in any way limit the authority of
the State to act summarily in emergency
situations. Family Court Act S 1021. . . .
So Ordered. . . . Lumbard, C.J. & Carter, J.
mn
100 3-22-76 Fid Dissenting Opinion No. 44104. . . . I
would dismiss the complt. . . . Pollack, J.
mn Amended 3-25-76
101 3-22-76 Fid Opinion No. 44103. . . . In sum, the
motions to certify a class of pltff foster
parents, pltff foster children, and inter-
venor-deft. natural parents are granted. In-
tervenors’ motion to amend their complt is
granted except for affirmative defenses 14 &
15 and the cross-claim, which are not al
lowed; and the intervenors’ motion to join
an addl pty is granted. So Ordered. . . .
Carter, J. mn
102 3-29-76 Filed amended Opinion No. 44102 conclud
ing that N.Y.S.S.L. §§ 383(2) and 400 and
N.Y.C.R.R. •§ 450.14 as presently operated,
unduly infringe the constitutional rights of
foster children and enjoining defts from
removing foster children unless and until
preremoval hearing is granted.
Docket #
10a
Docket #
103 4-14-76
107 5-25-76
110 5-26-76
115 6-10-76
116 6-17-76
117 6-10-76
118 6-9-76
Relevant Docket Entries
Filed Order & Judgment holding N.Y. Soc.
Services Law §§ 383(2) and 400, and N.Y.C.
R.R. § 450.14 unconstitutional; stay of effec
tive date of Order and Judgment for 30
days to permit application to Justice of
Supreme Court of U.S. for further stay
pending appeal to the Supreme Court.
Filed plntfs’ Notice of Motion for order
substituting new counsel for plntf foster
children, w/memo endorsed.
Filed order from Supreme Court of U.S.
that judgment of U.S.D.C. of 4-14-76 be
stayed pending referral to and further or
der of the county.
Filed L.J. Lefkowitz, Atty. Gen. of State
of N.Y., atty. for defts Shapiro & Lavine’s
Notice of Appeal to the Supreme Court of
U.S. from 4-14-76 to Order and Judgment.
Filed Infant plntf’s Notice of Appeal to
U.S. Supreme Court, from 4-14-76 U.S.D.C.
Order.
Filed Intervenor Defts’ Notice of Appeal to
the Supreme Court of U.S. from 4-14-76
U.S.D.C. Order.
Filed Deft New York City’s Notice of Ap
peal to Supreme Court of U.S. from 4-14-76
U.S.D.C. Order.
11a
125 9-27-76
126 9-27-76
127 10-19-76
128 10-19-76
129 10-19-76
130 10-19-76
131
133
134
Docket #
119 7-16-76
Relevant Docket Entries
Filed plantiff’s Notice of Appeal to U.S.
C.A. from opinion & order ent. 6-29-76 de
nying plaintiff foster parents’ motion to
substitute new counsel for foster children.
Filed true copy of Order from U.S.C.A.
granting Intervenor Defts’ motion to dis
miss appeal from U.S.D.C. and to stay
briefing schedule.
Filed true copy of State Defendant’s Order
from U.S.C.A.
Filed true copy of Order from Supreme
Court of U.S. re: Consolidation from Ap
peal.
Filed true copy of above Order.
Filed true copy of above Order.
Filed true copy of above order.
Stipulation to replace items filed but miss
ing from docket and/or record
Deposition of Laura Mae Thomas filed Sep
tember 22, 1975
Deposition of Seymour Shapiro filed Sep
tember 22, 1975
135 Deposition of Dr. Stella Chess, with exhibit
filed September 22, 1975
12a
Docket #
136
137
138
139
142
143
144
146
148
149
151
Relevant Docket Entries
Deposition of Sydney Smerzak filed Sep
tember 22, 1975
Deposition of Albert Solnit filed September
22, 1975
Continued Deposition of Albert Solnit filed
September 22, 1975
Deposition of Shirley Jenkins filed October
3, 1975
Order to Show Cause of March 26, 1976
Defts Shapiro Notice and Proposed Order
and Judgment
Deft Smith’s Proposed Order and Judg
ment with Affidavit of April 8, 1976 includ
ing motion to reargue.
Intervenor-defts’ proposed order and Affida
vit of April 5, 1976 including motion to re
argue.
Deposition of Robert Catalano taken April
14, 1975
Deposition of Peter Mullaney taken April
14, 1975
Clerk’s Certificate
13a
Second Amended Complaint
UNITED STATES DISTRICT COURT
Southern D istrict of New Y ork
74 Civ. 2010 RLC
Class A ction-
Organization of F oster F amilies for E quality and Re
form; Madeline Smith , on her own behalf and as next
friend of Danielle and E ric Gandy; and R alph and
Christiane Goldberg, on their own behalf and as next
friend of R afael Serrano, on behalf of themselves and
all others similarly situated,
Plaintiffs,
— against—
James Dumpson, individually and as Administrator of the
New Y ork City H uman Resources A dministration;
E lizabeth B eine, individually and as Director of the
New Y ork City Bureau of Child W elfare, and as Act
ing Assistant Administrator of New Y ork City Special
Services for Children; A dolin Dall, individually and
as Director of the D ivision of Inter-A gency R elation
ships of the B ureau of Child W elfare; and James P.
O’Neill, individually and as Executive Director of
Catholic Guardian Society of New Y ork,
Defendants.
■4 >
14a
1. This is a class action for declaratory and injunctive
relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. $§ 2201
and 2202 to protect and redress rights guaranteed by the
Fourteenth Amendment. In this action, plaintiffs and
members of their class seek a declaration that New York
Social Services Law §§ 383 (2) and 400 on their face and
as applied violate the due process and equal protection
clauses of the Fourteenth Amendment and an injunction
against their continued application, and a declaration that
the procedures for removing children from foster homes
as contained in 18 NYCRR 450.14, and as applied by de
fendants, violate the rights of plaintiffs and members of
their class to due process of law and equal protection of
the law as guaranteed by the Fourteenth Amendment, and
an injunction against the removal of children from the
homes of foster parents in violation of the Fourteenth
Amendment.
Second Amended Complaint
J urisdiction
2. This being an action to redress the deprivation under
color of -state law of rights, privileges and immunities
guaranteed by the United States Constitution, jurisdiction
is conferred on this court by 28 U.S.C. § 1343 (3) and (4).
T hree-judge Court
3. A three-judge court should be convened in accord
ance with 28 U.S.C. $ 2281 et seq. since plaintiffs seek to
enjoin defendants from acting in accordance with New
York Social Services Law §-§ 383 (2) and 400, statutes of
state-wide application, and 18 NYCRR 450.14, a regulation
of state-wide application, on the ground that said statutes
15a
and regulation are unconstitutionally vague on their face
and, both on their face and as applied, deny plaintiffs and
members of their class due process and equal protection
of the law in violation of the Fourteenth Amendment.
Class A ction Allegations
4. Plaintiffs bring this action as a class action under
Federal Rules of Civil Procedure 23(a), 23(b) (1) (A ),
23(b) (1) (B ), and 23(b) (2). Defendants have acted on
grounds generally applicable to the class, thereby making
injunctive and declaratory relief appropriate with respect
to the class.
5. There are four sub-classes represented by plaintiffs.
All of them involve foster families which have been to
gether for more than one continuous year, and which are
in jeopardy of being separated and the children moved
elsewhere in violation of their rights to equal protection
and due process of law, as guaranteed by the Fourteenth
Amendment.
6. Plaintiff Madeline Smith represents the sub-class of
foster parents who are under the supervision of authorized
child-care agencies. Plaintiffs Ralph and Christiane Gold
berg represent the sub-class of foster parents who are
under the direct supervision of a public welfare district.
Plaintiff Organization of Foster Families for Equality and
Reform represents both of these sub-classes, which on in
formation and belief contain well over a thousand mem
bers, viz., all those foster parents who have had continuous
care and custody of foster children for more than one
year, either through an authorized agency or under the
direct supervision of a public welfare district.
Second Amended Complaint
16a
7. Plaintiffs Danielle and Eric Gandy, who appear in
this action by their foster mother and next friend Madeline
Smith, represent the sub-class of foster children under the
supervision of authorized child-care agencies, and who
have lived in one foster home for more than one year.
Plaintiff Rafael Serrano who appears in this action by his
foster parents and next friends Ralph and Christiane
Goldberg, represents the sub-class of foster children under
the direct supervision of a public welfare district. Both
of the sub-classes contain, on information and belief, well
over a thousand members, viz., all those foster children
who have lived in one foster home for more than one year,
either under the supervision of an authorized agency or
under the direct supervision of a public welfare district.
8. The number of individuals in each of these sub
classes is too numerous to make joinder practicable.
9. Plaintiffs will fairly and adequately represent the
interest of the class in the present action. All plaintiffs
are represented by attorneys associated with the New
York Civil Liberties Union, a privately funded organiza
tion, with resources and experience in the area of consti
tutional litigation.
10. Plaintiffs’ claims are typical of the claims of the
class. Plaintiffs Madeline Smith, Ralph and Christiane
Goldberg, and O.F.F.E.R. represent all those foster par
ents who have taken homeless, dependent children who
are in the custody of public welfare officials, either di
rectly or through authorized agencies, into* their homes,
who have brought up these children for years, and who
are in jeopardy of having these children summarily re
moved pursuant to statutes and a state regulation, New
Second Amended Complaint
17a
York Social Services Law §§ 383 (2) and 400, and 18
NYCRR 450.14, which violate their constitutional rights
to due process and equal protection of the law. Plain
tiffs Eric and Danielle Gandy and Rafael Serrano repre
sent all those dependent New York children who are the
legal responsibility of public welfare officials, either di
rectly or through authorized agencies, who have been
placed in stable, loving foster homes, and who are in
jeopardy of losing what has become their family through
the arbitrary, standardless procedures authorized by New
York Social Services Law §§ 383 (2) and 400, and 18
NYCRR 450.14, in violation of their constitutional rights
to due process and equal protection of the law.
11. There are questions of law and fact common to all
members of class in this action, in that defendants Dump-
son, Beine, Dali and O’Neill have the statutory authority
to and do remove foster children from the homes of fos
ter parents in violation of both of these groups’ rights to
due process and equal protection of the law as guaranteed
by the Fourteenth Amendment.
12. The questions of law and fact common to the mem
bers of the class predominate over any questions affect
ing only individual members and an adjudication with
regard to plaintiffs’ constitutional claims would as a prac
tical matter be dispositive with regard to other members
of the class. A class action is superior to other available
methods for the fair and efficient adjudication of the con
troversy. Plaintiffs know of no interest of members of
the class in individually controlling separate actions.
Plaintiffs know of no difficulties likely to be encountered
in the management of a class action.
Second Amended Complaint
18a
Second Amended Complaint
P laintiffs
13. The Organization of Foster Families for Equality
and Reform is a downstate New York organization of
foster parents with a membership of approximately 250
persons. It is a member of the New York state-wide
coalition of parent organizations which includes over 2,000
persons. O.F.F.E.R. was organized to provide forums for
foster parents to discuss common problems with respect
to their relationship with the public officials and child
care agency representatives under whose authorization
they receive foster childem, and to gather and present
information with regard to foster parents’ rights.
14. Plaintiff Madeline Smith is a 53-year-old widow
who lives in East Elmhurst, New York. She became an
approved foster parent under the supervision of Catholic
Guardian Society of New York in 1969. On February 1,
1970, she took Eric and Danielle Gandy into her home as
foster children, where they have lived and been cared for
continually for the past four years.
15. Plaintiffs Eric Gandy, who is eight years old, and
Danielle Gandy, who is six years old, appear in this
action by their foster mother and next friend, Madeline
Smith. Both Danielle and Eric were placed in the cus
tody of the Commissioner of Social Services on April 26,
1968. They were placed in Mrs. Smith’s home on February
1, 1970, by Catholic Guardian Society of New York, and
have not seen their natural mother at least since that
date. Both Danielle and Eric call Mrs. Smith “ Mommy.”
16. Plaintiffs Ralph and Christiane Goldberg own their
own home in Brooklyn. Mr. Goldberg is a hospital ad
19a
ministrator. As authorized foster parents directly under
the supervision of the Bureau of Child Welfare, they took
Rafael Serrano into their home on July 11, 1969, where
he has lived as a member of their family for the past
five years.
17. Plaintiff Rafael Serrano, who is 11 years old, ap
pears in this action by his foster parents and next
friends, Ralph and Christiane Goldberg. On information
and belief, he has been in the custody of the Commis
sioner of Social Services since 1968, when his parents
signed a voluntary consent for placement after an abuse
report had been filed against him. He has lived with Mr.
and Mrs. Goldberg longer than he has lived any place
else in his life.
18. Defendant James Dumpson is the duly appointed
Administrator of the Human Resources Administration of
the City of New York and as such is responsible for the
administration of the New York City welfare district.
New York Social Services Law § 395 et seq. specifically
mandates that the official in charge of the local public
welfare district is responsible for all children within his
district who are in need of care and assistance.
19. Defendant Elizabeth Beine is an agent of defend
ant Dumpson and was at the time this action was filed
Acting Assistant Administrator of Special Services for
Children, an agency within the New York City Human
Resources Administration responsible for providing serv
ices for all children in need of care in New York. She
is also Director of the Bureau of Child Welfare, a divi
sion within Special Services for Children.
20. Defendant Adolin Dali is an agent of defendants
Dumpson and Beine and is Director of the Division of
Second Amended Complaint
20a
Inter-Agency Relationships of the Bureau of Child Wel
fare which, upon information and belief, is directly re
sponsible for the supervision of all authorized child-care
agencies which serve New York City children.
21. Defendant James P. O’Neill is Executive Director
of Catholic Guardian Society of New York, a child-care
agency authorized by the New York State Board of Social
Welfare to provide services for children and to receive
children for placement from the public welfare district
administrator. Upon information and belief, Catholic
Guardian Society of New York receives over 90 percent
of its funding from the City of New York, is subject to
state and city regulations and supervision, and acts under
color of state law.
Second Amended Complaint
Statement of Claim
Mrs. Smith and Eric and Danielle Gandy
22. Upon information and belief, in 1969, plaintiff
Madeline Smith became approved as a foster parent by
the Catholic Guardian Society of New York, a child-care
agency operated by defendant O’Neill under the super
vision of defendant Dumpson and liis agents.
23. At that time, upon information and belief, Mrs.
Smith told the Catholic Guardian Society social worker,
Mrs. Armstrong, that she wanted foster children who had
no family at all, because she would like to adopt them.
Mrs. Smith told Mrs. Armstrong that she had arthritis,
which made her unable to work, but she said, upon infor
mation and belief, that she was capable of caring for
children and was anxious to do so because her own daugh
ter had died.
21a
24. Upon information and belief, Mrs. Armstrong told
Mrs. Smith that Catholic Guardian Society had two chil
dren they would like to place with her, Eric and Danielle
Gandy. Upon information and belief, Mrs. Armstrong
told her that only Danielle was adoptable because Eric
was retarded, but that the agency was anxious to keep the
children together because they were the only family each
of them had. Mrs. Smith said she would take both children.
25. On February 1, 1970, Eric and Danielle Gandy went
to live with Mrs. Smith, where they have lived ever since.
26. Upon information and belief, Eric and Danielle
Gandy are legally free for adoption. Upon information
and belief, Danielle has never seen her natural mother,
Eric does not remember her, and both of them regard
Mrs. Smith as their mother.
27. Upon information and belief, Mrs. Smith has re
peatedly made known her desire to adopt the children to
workers at the Catholic Guardian Society.
28. Upon information and belief, defendant O’Neill and
his agents have arbitrarily decided to remove Eric and
Danielle Gandy from Mrs. Smith’s home. On information
and belief, defendants Dumpson, Beine, Dali and their
agents have approved defendant O’Neill’s decision to re
move Eric and Danielle Gandy from Mrs. Smith’s home.
29. Upon information and belief, Mrs. Smith has been
notified of this decision, but has not received any notice
of the reasons upon which the decision has been based.
Nor has Mrs. Smith been given an opportunity to chal
lenge these reasons in a hearing.
Second Amended Complaint
22a
30. Upon information and belief, Mrs. Dillon, an em
ployee of Catholic Guardian Society and an agent of de
fendant O’Neill’s, brought Mrs. Smith a letter dated March
29, 1974, a copy of which is annexed hereto as Exhibit
A, notifying her that Eric and Danielle would be removed
from her home on April 24, 1974. The only reason for
the pending removal stated in the letter is: “ To continue
to plan for Eric and Danielle, it is now in their best inter
ests to leave your home on or about April 24.”
31. Upon information and belief, the letter given to
Mrs. Smith is a printed form letter routinely used by
defendant O’Neill as the only notice to foster parents of
the pending removal of foster children from their foster
homes. The only blanks to be filled in on the form are
the names of the foster parents and the children, the date
of the letter and the date on which the children are to
be removed. The statement quoted in paragraph 30 is
part of the printed form, Avith the exception of blanks
for the children’s names and the removal date.
32. Upon information and belief, the only opportunity
for a hearing that has -been afforded to Mrs. Smith was
contained in the folloAving statement in the form letter:
“ In the event that you wish to waive the ten days’ notice
usually given to a foster parent before removing a child
just check this box, sign below, and return this letter to
me. However, if you have have serious questions about
this plan, it is your right to request a conference with
a public official. The Public Official will review Avith you
the reasons for the decision; and you can give your rea
sons for requesting the conference.”
33. Upon information and belief, the conference re
ferred to in the letter does not satisfy the most minimal
Second Amended Complaint
23a
due process rights, in that there are no written standards
or guidelines concerning the conference itself, there are
no written standards or guidelines by which to judge the
appropriateness of the agency’s removal decision, the fos
ter parent is not entiled to a written statement specify
ing the basis for the agency’s decision, the foster parent
is not entitled to confront and question those persons sup
plying the facts, if any, upon which the agency decision
has been made, and the foster parent is not entitled to
bring her own witnesses.
34. Upon information and belief, Mrs. Dillon brought
Mrs. Smith the letter, told her to check a box and sign
the letter, and told her that she had not waived any rights
to a review of the agency’s decision to remove the chil
dren. Upon information and belief, Mrs. Smith was de
nied even this legally insufficient conference since her al
leged waiver of the conference was an uninformed waiver.
35. Upon information and belief, defendants O’Neill and
his agents, and defendants Dumpson, Beine, and Dali have
decided to and plan to remove Eric and Danielle Gandy
permanently from Mrs. Smith’s home on May 10, 1974.
36. Upon information and belief, the procedure followed
by defendant O’Neill and his agents, with regard to noti
fication to Mrs. Smith of the planned removal of her foster
children is regularly followed by defendant O’Neill’s
agents with regard to other foster parents and children
over whom they have control.
37. Upon information and belief, this procedure is fol
lowed and carried out with the full knowledge and co
operation of and acting in concert with and under the au
Second Amended Complaint
24a
thority of defendants Dumpson, Beine, and Dali and their
agents.
38. All actions of defendant O’Neill and his agents al
leged in this complaint are and have been carried out un
der color of state law. Catholic Guardian Society of New
York, of which defendant O’Neill is Executive Director,
is a child-care agency authorized, approved and regulated
by New York state law, and supervised by state and city
public officials. Upon information and belief, it receives
over 90 percent of its funding from the City of New York,
and the acts as an agent of the city with regard to those
children including Eric and Danielle Gandy, whom the city
has referred to Catholic Guardian Society for placement.
Upon information and belief, a substantial portion of the
money Catholic Guardian Society receives from the City
of New York is reimbursed to the city from the federal
government as Aid to Families of Dependent Children pay
ments under Title IY-A of the Social Security Act.
39. Upon information and belief, this procedure, or pro
cedures substantially similar, are followed and carried out
by other child-care agencies under the control and super
vision of defendants Dumpson, Beine, and Dali and their
agents with the full knowledge and cooperation of said
defendants.
40. Upon information and belief, notification of the
availability of an administrative conference, held pursu
ant to 18 NYCRR 450.14, is frequently carried out by de
fendant O’Neill and waivers obtained, without said waivers
being informed waivers, and without the notified foster
parents being fully informed of and aware of their rights.
Second Amended Complaint
25a
41. Upon information and belief, notification of the
availability of an administrative conference held pursuant
to 18 NYCRR 450.14 is made in a substantially similar
way by other child-care agencies under the control and
supervision o f defendants Dumpson, Beine, and Dali and
their agents, and with their full knowledge and coopera
tion.
Mr. and Mrs. Goldberg and Rafael Serrano
42. Mr. and Mrs. Goldberg are authorized foster par
ents under the direct supervision of defendants Dumpson
and Beine. They took Rafael Serrano into their home on
July 11, 1969, when he was six years old.
43. On information and belief, Rafael had lived in sev
eral other homes before he came to live with Mr. and Mrs.
Goldberg in 1969, and had been severely abused by his
parents during the time he lived with them.
44. Upon information and belief, when Rafael was
placed with Mr. and Mrs. Goldberg by the Bureau of
Child Welfare in 1969, the worker told them that he was
brain damaged, retarded and hyperactive. Upon infor
mation and belief, they were told that if they didn’t take
the six-year-old boy at that time, the Bureau of Child
Welfare would place him in a state hospital.
45. Upon information and belief, when Rafael first came
to live with Mr. and Mrs. Goldberg, he was a very dis
turbed, unhappy child who threatened to tear apart their
home and their own three-year-old daughter. A doctor
who saw Rafael at that time described him as being para
lyzed by anxiety.
Second Amended Complaint
26a
46. Upon information and belief, the Bureau of Child
Welfare worker told Mr. and Mrs. Goldberg shortly after
they took Rafael that they should not feel bad about re
turning him to the agency since his record showed an
inability to adjust to a family setting. Upon information
and belief, the agency worker said the alternative to the
Goldbergs’ home for Rafael would be an institution.
47. Rafael has lived with Mr. and Mrs. Goldberg and
their daughter for the last five years as a member of their
family. He is now doing well in school, and has made
friends in their community.
48. Mr. and Mrs. Goldberg have been commended re
peatedly by employees and agents of defendants Dumpson
and Beine for doing an admirable job in raising Rafael.
49. Rafael’s parents have not -seen the boy in well over
a year and, upon information and belief, have made no
attempts to have their son returned to them. Upon in
formation and belief, all of their six children are in foster
care and the Bureau of Child Welfare has recommended
adoption for two of them.
50. Upon information and belief, the Bureau of Child
Welfare worker in charge of Rafael’s case, Robert Tobing,
has recommended that Rafael be taken from his home
with Mr. and Mrs. Goldberg within the next few months
and given to an aunt whom Rafael has visited only once.
51. Upon information and belief, the aunt to whom the
agency plans to give Rafael does not want to take him
from the Goldbergs’ home and does not want to bring him
u p .
Second Amended Complaint
27a
52. Upon information and belief, Mr. and Mrs. Gold
berg have not been notified directly of the Bureau of Child
Welfare’s decision to remove Rafael from their home, nor
do they know any reason why such an action should be
taken.
53. Upon information and belief, the Bureau of Child
Welfare is working toward removing Rafael from his
home with Mr. and Mrs. Goldberg, by attempting to set
up visits between Rafael and his aunt so they can get to
know each other before Rafael is to be moved. Such
visits in the context of a planned move are subjecting
Rafael and Mr. and Mrs. Goldberg to severe anxiety and
uncertainty.
54. Upon information and belief, these actions of de
fendants Dumpson, Beine and their agents, to begin to
effectuate a plan to remove a child from a home he has
made with his foster parents, without adequate notice of
the planned removal and without stating the reasons for
such a removal, are carried out in a substantially similar
way with regard to other foster parents and children un
der the direct supervision and control of the Bureau of
Child Welfare, and with the full knowledge and coopera
tion of defendants Dumpson and Beine.
55. Under 18 NYCRR 450.14, Mr. and Mrs. Goldberg
are only entitled to notification that Rafael is to be re
moved from their home 10 days prior to the date of the
actual removal.
56. When they are thus notified, they have a right to
request a conference with an agent and employee of the
Bureau of Child Welfare, prior to the removal, pursuant
to 18 NYCRR 450.14.
Second Amended Complaint
28a
57. Upon information and belief, the costs of the foster
care program under the direct supervision of the Bureau
of Child Welfare, in which Mr. and Mrs. Goldberg are
authorized foster parents, are substantially reimbursed by
the federal government as Aid to Families of Dependent
Children payments under Title IY-A of the Social Security
Act.
Second Amended Complaint
New York City Revised Procedure
58. Subsequent to the filing of this action, defendant
Dumpson and his agents promulgated a document entitled
“ Human [Resources Administration Inter-Office Memoran
dum, Subject: Administrative Removal of Foster Chil
dren,” dated June 25, 1974, setting forth procedural
changes with regard to the removal of New York City
foster children from foster homes under certain circum
stances.
Causes of A ction
59. The notification procedure described above in para
graphs 29 through 41 violates the right of plaintiff Smith
and foster parents who are members of her class not to
be deprived without due process of law of the fundamental
right to establish a home and bring up children and to
enjoy those privileges long recognized as essential to the
pursuit of happiness and liberty encompassed within the
Fourteenth Amendment.
60. The notification procedure contained within the New
York City procedure referred to in paragraph 58 above
violates the rights of plaintiffs Smith and Ralph and
29a
Christiane Coldberg and members of their class not to be
deprived without due process of law of the fundamental
right to establish a home and bring up children and to
enjoy those privileges long recognized as essential to the
pursuit of happiness and liberty encompassed w ithin the
Fourteenth Amendment.
61. The plan and the attempts by agents of defendants
Dumpson and Beine to begin implementation of their de
cision to remove Rafael Serrano from his home with Mr.
and Mrs. G-oldberg, prior to notification that the child is
to be removed, violates the right of plaintiffs Ralph and
Christiane Goldberg not to be deprived without due proc
ess of law of the fundamental right to establish a home
and bring up children and to enjoy those privileges long
recognized as essential to the pursuit of happiness and
liberty encompassed within the Fourteenth Amendment.
62. New York Social Services Law $ 383 (2), which
authorizes defendant O’Neill and his agents, with the
knowledge, authorization and encouragement of defend
ants Dumpson, Beine and Dali, to remove Eric and
Danielle Candy from Mrs. Smith’s home and which au
thorizes defendants Dumpson and his agents to remove
Rafael Serrano from Ralph and Christiane Coldberg’s
home provides:
“ The custody of a child placed out or boarded
out and not legally adopted or for whom legal
guardianship has not been granted shall be vested
during his minority, or until discharged by such
authorized agency from its care and supervision, in
the authorized agency placing out or boarding out
such child and any such authorized agency may in
Second Amended Complaint
30a
its discretion remove such child from the home
where placed or boarded.”
63. Said statute is unconstitutionally vague and fails
to set standards in violation of the rights of plaintiffs
Smith and Ralph and Christiane Goldberg and foster par
ent members of their class not to be deprived of their
fundamental rights to establish a home, bring up children
and to enjoy those privileges long recognized as essential
to the pursuit of happiness and liberty encompassed within
the due process guarantee of the Fourteenth A m endment.
64. Said statute is unconstitutionally vague and fails to
set standards in violation of the rights of plaintiffs Eric
and Danielle Gandy and Rafael Serrano and other foster
children in their class to those fundamental rights and
privileges long recognized as assential to the pursuit of
happiness and liberty encompassed within the due process
guarantee of the Fourteenth Amendment.
65. The statute, New York Social Services Law § 400,
which authorized defendants Dumpson and Beine and their
agents to remove Rafael Serrano from the home of Ralph
and Christiane Goldberg, provides:
“ When any child shall have been placed in an in
stitution or in a family home by a commissioner of
public welfare or a city public welfare officer, the
commissioner or city public welfare officer may re
move such child from such institution or family
heme and make such disposition of such child as is
provided by law.
“Any person aggrieved by such decision of the
commissioner of public welfare of city welfare of
Second Amended Complaint
31a
ficer may appeal to the department, which upon
receipt of the appeal shall review the case, shall
give the person making the appeal an opportunity
for a fair hearing thereon and within thirty days
render its decision. The department may also, on
its own motions, review any such decision made
by the public welfare official. The department may
make such additional investigation as it may deem
necessary. All decisions of the department shall
be binding upon the public welfare district involved
and shall be complied with by the public welfare
officials thereof.”
66. Said statute is unconstitutionally vague and fails
to set standards in violation of the rights of plaintiffs
Ralph and Christiane Goldberg and foster parent mem
bers of their class not to be deprived of their funda
mental rights to establish a home, bring up children and
to enjoy those privileges long recognized as essential to
the pursuit of happiness and liberty encompassed within
the due process guarantee of the Fourteenth Amendment.
67. Said statute is unconstitutionally vague and fails
to set standards in violation of the rights of plaintiff
Rafael Serrano and members of his class to those funda
mental rights and privileges long recognized as essential
to the pursuit of happiness and liberty encompassed with
in the due proceses guarantee of the Fourteenth Amend
ment.
68. The facial constitutional infirmity of New York
Social Services Law §§ 383(a) and 400 is further com
pounded by the absence of any state regulations which
set standards by which these statutes are to be applied,
Second Amended Complaint
32a
in violation of the due process rights of plaintiffs and
members of their class.
69. The facial constitutional infirmity of Social Services
Law § 383 (2) is further compounded by the fact that
this unfettered discretion, which is exercised in the ab
sence of any state regulations setting standards, is given
to employees and agents of voluntary child-care agencies,
who act under color of state law but are not under the
control of public officials, in violation of the right of plain
tiffs Madeline Smith and Eric and Danielle Gandy and
members of their class to due process and equal protec
tion of the law.
70. New York Social Services Law § 400, which pro
vides a foster parent aggrieved by a decision to remove
a foster child from his or her home with the right to a
fair hearing subsequent to the removal of the child, ex
tends only to foster parents under the direct supervision
of a public welfare official. On its face, this statute de
prives plaintiffs Madeline Smith and Eric and Danielle
Gandy and members of their class, who are foster parents
and foster children under the direct supervision of a vol
untary child-care agency, of equal protection of the law
in violation of their constitutional rights.
71. On its face, 18 NYCRR 450.14(a) (b) and (c) in
sofar as it provides an administrative conference without
mandating even minimal due process safeguards and
standards, prior to the removal of foster children from
foster homes, violates the constitutional rights of plain
tiffs Madeline Smith and Eric and Danielle Gandy, and
Ralph and Christiane Goldberg, and members of their
Second Amended Complaint
33a
class not to be deprived of liberty or fundamental rights
without due process of law.
72. As applied by defendants, 18 NYCRR 450.14 (a)
(b) and (c) insofar as it provides an administrative con
ference prior to the removal of foster children from fos
ter homes without constitutionally adequate due process
safeguards, violates the constitutional rights of plain
tiffs and members of their class not to be deprived of
liberty or fundamental rights without due process of law.
73. The internal procedure enacted by defendants
Dumpson and his agents, dated June 25, 1974, and re
ferred to in paragraph 58 above, is unconstitutionally
vague, fails to set standards, and does not provide con
stitutionally adequate due process safeguards prior to
the removal of foster children from foster homes, in vio
lation of the rights of plaintiffs and members of their
class not to be deprived of liberty or fundamental rights
without due process of law.
74. New York Social Services Law § 400 and 18 NY
CRR 450.14(c) provide that a foster family aggrieved by
a decision to remove a child from its home may request
a fair hearing to review the decision subsequent to the
time the child is actually removed from the home.
75. The absence of a fair hearing prior to the termina
tion of participation in a program funded by the federal
government, under its Aid to Families of Dependent Chil
dren, while other recipients and beneficiaries of federal
funds under Aid to Families of Dependent Children are
entitled to a fair hearing prior to such a termination,
under 18 NYCRR 358.8, violates the rights of plaintiff
Second Amended Complaint
34a
foster families and foster children to equal protection of
the law as guaranteed by the Fourteenth Amendment.
76. The absence of any hearing procedure which satis
fies due process standards prior to the removal of foster
children from homes in which they have lived for more
than a year violates the rights of Eric and Danielle
Gandy and Rafael Serrano and members of their class
not to be subjected to irreparable harm and denied lib
erty and fundamental rights without due process of law
as guaranteed by the Fourteenth Amendment.
77. The absence of any hearing procedure which satis
fies due process standards prior to the removal of foster
children from homes in which they have lived for more
than a year violates the rights of Madeline Smith and
Ralph and Christiane Goldberg and members of their
class not to be subjected to irreparable harm and denied
liberty and fundamental rights without due process of
law as guaranteed by the Fourteenth Amendment.
Second Amended Complaint
P rayer eor R elief
W herefore, plaintiffs respectfully pray that this Court:
(a) Grant a temporary restraining order restraining
defendants O’Neill, Dumpson, Beine and Dali from re
moving Eric and Danielle Gandy from the home of Mrs.
Madeline Smith;
(b) Convene a three-judge court pursuant to 28 U.S.C.
§$ 2281 and 2284;
35a
(c) Enter a declaratory judgment that New York Social
Services Law § 383(2) is unconstitutional on its face and
as applied as a violation of the due process clause of
the Fourteenth Amendment;
(d) Enter a declaratory judgment that New York
Social Services Law § 400 is unconstitutional on its face
and as applied as a violation of the due process and
equal protection clauses of the Fourteenth Amendment;
(e) Enter a declaratory judgment that the practice of
defendants Dump son and Beine and their agents of fail
ing to provide a due process hearing prior to the re
moval of children from foster homes in which they have
lived continuously for over one year violates the rights
of foster parents and children to due process and equal
protection of the law;
(f) Enter a declaratory judgment that 18 NYCRR
450.14 is unconstitutional on its face and as applied as a
violation of the due process clause of the Fourteenth
Amendment;
(g) Enter a declaratory judgment that the New York
City Human Resources Administration internal procedure
for removing foster children from foster homes is uncon
stitutional on its face and as applied as a violation of
the due process clause of the Fourteenth Amendment;
(h) Preliminarily and permanently enjoining defend
ants from removing foster children from foster homes in
which they have lived continuously for a period of over
one year pursuant to New York Social Services Law § 383
( 2 ) ;
Second Amended Complaint
36a
(i) Preliminarily and permanently enjoin defendants
from removing foster children from foster homes in which
they have lived continuously for a period of over one
year pursuant to 18 NYCRR 450.14;
(j) Preliminarily and permanently enjoin defendants
from removing foster children from foster homes in which
they have lived continuously for a period of over one
year pursuant to the New York City Human Resources
Administration internal procedure;
(k) Preliminarily and permanently enjoin defendants
from removing foster children from foster homes in which
they have lived continuously for a period of over one
year without the due process safeguards of adequate and
specific notice and a prior hearing which satisfy the due
process requirements of the Fourteenth Amendment;
(l) Such other and further relief as this Court deems
just and proper.
Second Amended Complaint
Respectfully submitted,
Marcia R obinson L owry
Children’s Rights Project
New York Civil Liberties Union
84 Fifth Avenue
New York, New York 10011
(212) 924-7800
Attorneys for Plaintiffs
37a
Exhibit A
CATHOLIC GUARDIAN SOCIETY
1011 F irst A venue
New Y ork, New Y ork 10022
Telephone: 371-1000
September 21, 1973
Telephone # 478-0945
Date: 3/29/74
Re: Eric & Danielle Gandy
Mrs. Madeline Smith
23-15 101st Street
East Elmhurst, N.Y.
Dear Mrs. Smith
The care and attention yon have given to the foster
child(ren) in your home is greatly appreciated. This has
been a service not only to the child, but to your com
munity.
To continue to plan for Eric & Danielle, it is now in
(their) best interests to leave your home on or about
April 24. Should you desire any additional information,
please feel free to contact me.
In the event that you wish to waive the ten day’s notice
usually given to a foster parent before removing a child
just check this box [ / ] , sign below, and return this letter
to me.
However, if you have serious questions about this plan,
it is your right to request a conference with a public offi-
38a
Exhibit A
cial. The Public Official will review with you the reasons
for the decision; and you can give your reasons for re
questing the conference. I f you wish, you can bring a
representative to the conference. Please let me know
immediately if you wish me to arrange such a conference
for you and whether you plan to bring a representative.
Otherwise, I shall assume you are in agreement that the
plan should be carried out.
Once again, may we thank you for your service to the
New York City’s children.
Sincerely yours,
Jane-Ellen D illon
Caseworker
(ILLEGIBLE)
(ILLEGIBLE)
Madeline Smith
39a
Order Convening Three Judge Court
UNITED STATES DISTRICT COURT
Southern D istrict of New Y ork
74 Civ. 2010
Organization of F oster F amilies for E quality and
R eform, et al.,
Plaintiffs,
—against—
James Dumpson, et al.,
Defendants.
------------------ »----------------------
This cause having come on to he heard on plaintiffs’
motion pursuant to 28 U.S.C. §§ 2281 and 2284 for the
convening of a three-judge court, plaintiffs’ motion to join
parties pursuant to Fed. R. Civ. P. 21, plaintiffs’ motion
for a temporary restraining order pursuant to 28 U.S.C.
§ 2284(3), and the motion of Naomi Rodriguez et al. to
intervene in this action pursuant to Fed. R. Civ. P. 24(a)
and (b), and papers having been submitted and a hearing
having been held on all the motions listed above on Au
gust 5, 1974, before the Hon. Robert L. Carter, it is
Ordered that plaintiffs’ motion for the convening o f a
three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284
be and hereby is granted, and it is further
40a
Ordered that plaintiffs’ motion to join Dorothy and
George Lhotan, and Cheryl, Patricia, Cynthia and Cath-
leen Wallace as parties plaintiff, and Joseph D’Elia Com
missioner of the Nassau County Department of Social
Services, Bernard Shapiro, Executive Director of the New
York State Board of Social Welfare, and Abe Lavine,
Commissioner of the New York State Department of So
cial Services as parties defendant be and hereby is
granted, and further
The court having made a finding that irreparable injury
will result to Cheryl, Patricia, Cynthia and Cathleen Wal
lace through the disruption in their lives caused by their
removal from the home of Dorothy and George Lhotan,
and in order to maintain the status quo with regard to
these children and their foster parents, it is further
Ordered that defendant Joseph D’Elia be restrained pur
suant to 28 U.S.C. § 2284(3) from removing Cheryl, Patri
cia, Cynthia and Cathleen Wallace from the home of
Dorothy and George Lhotan or in any way interfering
with or interrupting their stay with these foster parents
pending a hearing before the three-judge court, and a
determination of plaintiffs’ motion for a preliminary in
junction and it is further
Ordered that the motion of Naomi Rodriguez, Rosa
Diaz, Mary Robins and Dorothy Nelson Shabazz to inter
vene as defendants in this action pursuant to Fed. R.
Civ. P. 24(a) and (b) is granted solely for the purposes
of litigating the issues and causes of action contained in
Plaintiffs’ Second Amended Complaint, and it is further
Ordered that the cross claims of Naomi Rodriguez, Rosa
Diaz, Mary Robins, and Dorothy Nelson Shabazz asserted
Order Convening Three Judge Court
41a
in Intervenor Defendants’ Answer and Cross Claim are
stricken and the intervenor defendants’ cross claims are
disallowed.
Dated: New York, New York
August 15, 1974
Order Convening Three Judge Court
R obert L. Carter
United States District Judge
A True Copy
R aymond F B urghardt,
Clerk
B y : Gr. Harbison
Deputy Clerk
42a
UNITED STATES DISTRICT COURT
Southern District oe New Y ork
74 Crv 2010 RLC
Answer of New York State Defendants
-----------------------«----------------------
Organization of F oster F amilies for E quality and
R eform; Madeline Smith, on her own behalf and as
next friend of Danielle and E ric Candy; and R alph
and Christiane Goldberg, on their own behalf and as next
friend or R afael Serrano, on behalf o f themselves and
all others similarly situated,
Plaintiffs,
—against—
James Dumpson, individually and as Administrator of
the New Y ork City H uman R esources A dministration ;
E lizabeth Beine, individually and as Director of the
New Y ork City B ureau of Child W elfare, and as
Acting Assistant Administrator of New Y ork City
Special Services for Children; A dolin Dall, individu
ally and as Director of the D ivision of I nter-A gency
R elationships of the B ureau of Child W elfare; and
James P. O’Neill, individually and as Executive Direc
tor of Catholic Guardian Society of New Y ork,
Defendants.
Defendants Bernard Shapiro, individually and in his
capacity as Executive Director of the New York State
43a
Board of Social Welfare and Abe Lavine, individually
and in his capacity as Commissioner of the New York
State Department of Social Services, by their attorney,
Louis J. Lefkowitz, Attorney General of the State of
New York, for their answer to the second amended com
plaint herein, on information and belief, respectfully:
First: Deny each and every allegation contained in
paragraphs 2, 4, 5, 59, 60, 61, 63, 64, 66, 67, 68, 69, 70,
71, 72, 73, 75, 76 and 77 of plaintiffs’ second amended
complaint.
Second: Admits each and every allegation contained in
paragraphs 3, 18, 19, 20, 21, 31, 55, 56, 57, 58, 65 and 74
of plaintiffs’ second amended complaint.
Third: Deny knowledge or information sufficient to
form a belief as to the truth of each and every allega
tion contained in paragraphs 1, 6, 8, 9, 10, 11, 12, 13, 14,
16, 22, 23, 24, 25, 26, 27, 28, 34, 36, 37, 39, 40, 41, 42, 43,
44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 and 57 of plain
tiffs’ second amended complaint.
Fourth: Deny knowledge or information sufficient to
form a belief as to the truth of each and every allega
tion contained in paragraph 7 of plaintiffs’ second
amended complaint, except denies so much of the allega
tions in said complaint as alleges or implies that Danielle
and Eric Gandy, may be permitted to or properly ap
pear by and be represented by their “ foster mother and
next friend Madeline Smith, and further deny so much
of the allegations in said paragraph as alleges or im
plies that plaintiff Rafael Serrano may be permitted to
or properly appears by Ms foster parents and next
friends Ralph and Christians Goldberg.”
Answer of New York State Defendants
44a
Fifth : Deny knowledge or information sufficient to
form a belief as to the truth of each and every allega
tion contained in paragraph 15 of plaintiffs’ second
amended complaint, except deny so much of the allega
tions in said paragraph as alleges or implies that plain
tiffs Eric and Danielle Gandy may properly appear or
be permitted to appear in this action by their foster
mother and next friend, Madeline Smith.
Sixth: Deny knowledge or information sufficient to form
a belief as to the truth of each and every allegation con
tained in paragraph 17 of plaintiffs’ second amended
complaint, except deny so much of the allegations con
tained in said paragraph as alleges or implies that plain
tiff Eafael Serrano1 may properly appear or be permitted
to appear in this action by their foster parents and next
friends Ralph and Christiane Goldberg.
Seventh: Denies knowledge or information sufficient
to form a belief as to the truth of each and every allega
tion contained in paragraph 29 of plaintiffs’ second
amended complaint, except denies so much of the allega
tions in said paragraph as alleges that plaintiff Smith
has been denied an opportunity to challenge the basis for
the decision:
Eighth: Admit each and every allegation contained in
paragraph 30 of plaintiffs’ second amended complaint,
except deny knowledge or information sufficient to form
a belief as to the truth of so much of the allegations in
said paragraph as alleges that letter dated March 29,
1974 was delivered by a Mrs. Dillon and that Mrs. Dillon
is an employee of the Catholic Guardian Society and an
agent of defendant O’Neill, and each such allegation.
Answer of New York State Defendants
45a
Ninth: Denies so much of paragraph 32 of plaintiffs’
second amended complaint as alleges or implies that the
only mode of review and hearing is contained in the form
paragraph of the conference with the public official, but
admits that the form letter received by Mrs. Smith does
contain the statement quoted in said paragraph.
Tenth: Deny so much of the allegations in paragraph
33 of plaintiffs’ second amended complaint as alleges or
implies that plaintiff has a right to due process prior to
the removal of the foster child, that due process in any
event mandates the use of a written statement specifying
the basis for the agency’s decision, or the right to con
front and cross-examine witnesses or the right to present
her own witnesses, or the use of written guidelines. Fur
ther deny so much of the allegations in said paragraph
as alleges that there are no written standards or guide
lines concerning the conference itself.
Eleventh: Deny knowledge or information sufficient to
form a belief as to the truth of each and every allega
tion contained in paragraph 38 of plaintiffs’ second
amended complaint, except deny that defendant O’Neill
and his agent are acting under color of state law.
Answer of New York State Defendants
As AND FOR A F lR S T SEPARATE AND COMPLETE
A f f i r m a t i v e D e f e n s e :
Twelfth: Under state law, children placed with agencies
for placement in foster care families, remain in the cus
tody of the agency so placing them, and are merely placed
into these homes and with the parents as, in effect em
ployees of the agency, as caretakers.
46a
Thirteenth: At no time prior to the completion of
adoption proceedings do the children so placed become
permanent members of the foster family. At all times
prior to the completion of adoption proceedings, if any,
the placement agency is responsible for the health, safety
and well-being of the children, and continues to maintain
supervision over the foster families and custody of the
children.
Fourteenth: A t no time prior to the onset of formal
adoption proceedings is it contemplated that the foster
parent relationship is anything more than a temporary
caretaker relationship.
As and for a Second Separate and Complete
A ffirmative Defense:
Fifteenth: Upon information and belief, in none of
the situations involving any of the named plaintiffs does
the removal of the children from the homes of the foster
parents, reflect adversely upon the quality of the care
provided by the foster parents or foreclose them from, in
the future, again being foster parents.
Sixteenth: Upon information and belief, the foster par
ents are in no way deprived of either the liberty to en
gage in familiar relationships or is there any informa
tion of the freedom to raise their children in a manner
they deem fit.
Seventeenth: There is therefore, on behalf of the fos
ter parents no deprivation of either liberty or property
and therefore no violation of their constitutional rights.
Answer of New York State Defendants
47a
As AND FOR A TH IR D SEPARATE AND COMPLETE
A f f i r m a t i v e D e f e n s e :
Eighteenth: Neither by way of statute or court rule
do plaintiff foster parents have any standing to assert
the claims, if any of the foster children, as they are
neither the parents or legal guardians of the children.
Moreover, such representation in an action of this kind
is particularly inappropriate as the parents are inter
ested parties who may have an interest adverse to those
of the foster children.
As AND FOR A FO U R T H SEPARATE AND COMPLETE
A f f i r m a t i v e D e f e n s e :
Nineteenth: The complaint fails to state a claim for
which relief can be granted.
Answer of New York State Defendants
As AND FOR A F lF T H SEPARATE AND COMPLETE
A f f i r m a t i v e D e f e n s e :
Twentieth: The court lacks subject-matter jurisdiction.
W h e r e f o r e : Defendants Shapiro and Lavine, respect
fully pray this Court enter a judgment:
(a) Denying each and every prayer for relief in
plaintiffs’ second amended complaint and either
(b) Dismissing the complaint; or
(c) In the alternative, entering a declaratory judgment
declaring New York Social Services Law § 383(2) con
stitutional both on its face and as applied; and
48a
(d) Enter a declaratory judgment declaring New
York Social Services Law § 400 constitutional both on its
face and as applied; and
(e) Granting such other, further and different relief
that as to this Court appears just and proper.
Answer of New York State Defendants
Respectfully submitted,
Louis J. L efkowitz
Attorney General of the
State o f New York
Attorney for defendants Shapiro
and Lavine
B y: Stanley L. K antor
Assistant Attorney General
Office & P.O. Office Address
Two World Trade Center
New York, New York 10047
Tel. No. (212) 488-5168
49a
UNITED STATES DISTRICT COURT
Southern District of New Y ork
74 Civ 2010 RLC
Intervenor Defendants First Amended Answer
and Cross Claim
---------------------_♦-----------------------
Organization of F oster F amilies for E quality and R e
form : Madeline Smith, on her own behalf and as next
friend of Danielle and E ric Gandy; and Ralph and
Christiane Goldberg, on their own behalf and as next
friend of Rafael Serrano, on behalf o f themselves and
all others similarly situated,
Plaintiffs,
—against—
James Dumpson, individually and as Administrator of the
New Y ork City H uman R esources A dministration;
E lizabeth Beine, individually and as Director of the
New Y ork City B ureau of Child W elfare, and as Act
ing Assistant Administrator of New Y ork City Special
Services for Children; A dolin Dall, individually and
as director of the D ivision of Interagency R elation
ships of the B ureau of Child W elfare and James P.
O’Neill, individually and as Executive Director of
Catholic Guardian Society of New Y ork,
Defendants,
50a
----------------------------- _ * ---------------------------------
Naomi R odriguez, R osa Diaz, Mary R obins, Dorothy
Nelson Shabazz, on behalf of themselves and all other
persons similarly situated,
Intervenor Defendants
and Cross Claimants.
Intervenor Defendants First Amended Answer
and Cross Claim
Intervenor-defendants, by their attorney Marttie Louis
Thompson (Toby Golick, Ira S. Bezoza, Louise Gans of
Counsel), answering the Second Amended Complaint
herein, on their own behalf and on behalf of all other
persons similarly situated, allege:
1. Deny the allegations in paragraphs 10, 11, 12, 33, 59,
60, 61, 62, 63, 64, 66, 67, 68, 69, 70, 71, 72, 73, 75, 76 and 77.
2. Deny the allegations in paragraph 9 of Second
Amended Complaint except admit plaintiffs are repre
sented by attorneys from the New York Civil Liberties
Union with resources and experience in constitutional liti
gation.
3. Lack knowledge or information sufficient to form a
belief as to Paragraphs 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 22,
23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39,
40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55,
56, 57 and 74.
51a
As a F irst A ffirmative Defense
4. The complaint fails to state a claim against defend
ants and intervenor-defendants upon which relief can be
granted.
Intervenor Defendants First Amended Answer
and Cross Claim
As a Second A ffirmative Defense
5. Plaintiff foster parents and the class they purport to
represent have no constitutional right to raise and care
for foster children who have been boarded with plaintiff
foster parents by State, City and County Social Service
officials or other authorized agencies pursuant to contract
and license.
As a T hird A ffirmative Defense
6. Under State law, foster parents must be licensed by
the local commissioner of social services before children
may be boarded in their homes; such licenses are of one
year’s duration but may be renewed.
7. On information and belief plaintiff foster parents
and the class they purport to represent board children
pursuant to such foster care license.
8. On information and belief said license does not give
to plaintiff foster parents, or to members of their pur
ported class, the right to board any specific children.
9. On information and belief the licenses of plaintiff
foster parents to board children have not been revoked.
52a
As a F ourth A ffirmative Defense
10. On information and belief State, City and County
social service officials placing out or boarding out children
customarily enter into a contract with each foster parent
with whom a child is boarded.
11. On information and belief standard provision of
this contract is that the foster parent agrees to return
any child boarded with him or her to authorized agency
upon such agency’s request.
12. On information and belief plaintiffs, Ralph and
Christiane Goldberg, signed a contract containing such a
provision with the Department of Social Services of the
City of New York in connection with the boarding of the
child Rafael Serrano in their home. On information and
belief plaintiffs, Dorothy and George Lhotan signed a
contract containing such a provision with the Children’s
Bureau of the Nassau County Department of Social Serv
ices.
13. Plaintiff foster parents Ralph and Christiane Gold
berg, have accepted the power of the authorized agency to
remove children from their home as a condition of their
ability to board foster children. Plaintiff foster parents
Dorothy and George Lhotan have accepted the power of
the authorized agency to remove children from their home
as a condition of their ability to board foster children.
As a F ifth A ffirmative Defense
14. On information and belief a voluntary authorized
agency placing out or boarding out children enters into a
Intervenor Defendants First Amended Answer
and Cross Claim
53a
contract witli each foster parent with whom a child is
boarded.
15. On information and belief a standard provision of
this contract is that the foster parents agree to return
any children boarded with them to the authorized agency
upon such agency’s request.
16. On information and belief plaintiff, Madeline Smith,
signed a contract containing such a provision with the
Catholic Guardian Society of New York in connection
with the boarding of the children, Danielle and Eric
Gandy, in her home.
17. Plaintiff foster parent, Madeline Smith, has ac
cepted the power of the authorized agency to remove chil
dren from her home as a condition of her ability to board
foster children.
As a Sixth A ffirmative Defense
18. Neither by way of statute or court rule do plaintiff
foster parents have any standing to assert the claims, if
any, of the foster children, as they are neither the parents
nor legal guardians of the children. Moreover, such rep
resentation in action of this kind is particularly inappro
priate as the parents are interested parties who may have
an interest adverse to those of the foster children.
As a Seventh A ffirmative Defense
19. On information and belief plaintiff foster parents
have had plaintiff foster children in their homes from
Intervenor Defendants First Amended Answer
and Cross Claim
54a
from two to five years. Under State law foster parents
who have had foster children in their homes for two years
or more are given rights which foster parents who have
had foster children in their homes for less than two years
do not have.
20. On information and belief the significance of a
child’s stay in foster care for two years rather than one
year may be substantial for the foster child.
21. Plaintiff foster parents lack standing to sue as fos
ter parents who have had foster children boarded in
their home for less than two years and more than one
year. Similarly, plaintiff foster children lack standing to
sue as children who have lived in foster homes for less
than two years and more than one year. Plaintiffs claim
with respect to foster parents who have had foster chil
dren boarded in their homes for less than two years and
more than one year is non-justiciable or there is no case
or controversy stated with respect to it because there is
no plaintiff before the Court who raises that issue.
Intervenor Defendants First Amended Answer
and Cross Claim
As An E ighth A ffirmative Defense
22. On information and belief plaintiff foster children
have been separated from their natural parents for four
years or more. Plaintiff foster cliildren lack standing to
sue as children who have been separated from their
parents for less than four years.
55a
Intervenor Defendants First Amended Answer
and Cross Claim
As a Ninth A ffirmative Defense
23. Plaintiff, Organization of Foster Families for
Equality and Reform, Inc., lack standing to sue in this
action.
As a T enth A ffirmative Defense
24. Plaintiff foster children have no constitutional right
to live in the home of particular foster parents with
whom they were boarded by an authorized agency.
As an E leventh A ffirmative Defense
25. On information and belief a foster care review
proceeding pursuant to Social Services Law section 392
to review the foster care placement of Danielle and Eric
Gandy was commenced and pending in the Family Court
of the State of New York, City of New York, at the time
tills action was commenced and plaintiff Madeline Smith
is a party to said proceeding. On information and be
lief said foster care review proceeding is still pending
undetermined in the Family Court of the State of New
York, City of New York.
26. Subsequent to the filing of this action, defendant
Dumpson and his agents promulgated a document en
titled “Human Resources Administration Inter-Office
Memorandmn, Subject: Administrative Removal of Foster
Children” , dated June 25, 1974 and put into effect on or
about August 5, 1974, setting forth procedural changes
with regard to the removal of New York City foster chil
56a
dren from foster homes when they were being moved to
other foster homes or institutions.
27. On information and belief said procedure will be
applicable to plaintiff foster parent Madeline Smith and
plaintiff foster children Danielle and Eric Gandy.
28. Plaintiff foster parent Madeline Smith and plain
tiff foster children Danielle and Eric Gandy have an ade
quate remedy under State law.
Intervenor Defendants First Amended Answer
and Cross Claim
As a T welfth A ffirmative Defense
29. Repeat each and every allegation contained in
paragraph 26 herein.
30. On information and belief said procedure will be
applicable to plaintiff foster parents Ralph and Christiane
Goldberg and plaintiff foster child Rafael Serrano.
31. Plaintiff foster parents Ralph and Christiane Gold
berg and plaintiff foster child Rafael Serrano have an
adequate remedy under State law.
As a T hirteenth A ffirmative Defense
32. On information and belief a habeas corpus pro
ceeding for the custody of the children Cynthia and Cath-
leen Wallace was initiated in the Supreme Court for the
State of New York, Nassau County, by the children’s
mother, Patricia Wallace, and plaintiffs Dorothy and
George Lhotan are party defendants in said proceeding.
57a
33. Plaintiff Dorothy and George Lhotan have ade
quate remedy under state law.
As a F ourteenth A ffirmative Defense
34. Intervenor-defendants, individually and as a class,
are natural parents who place their children in foster
care with public and quasi-public “ authorized agencies”
by signing an instrument designated Authorization for
Placement of Child in Foster Care, or since September 1,
1973, by means of an instrument entitled Authorization
to Place Child in Foster Care (copies annexed hereto).
Their children are, or will soon be, in foster care for a
year or more. On information and belief said instru
ments are routinely executed by natural parents and by
a Social Service representative. Said instruments con
tain no reference to foster parents and no provision that
foster parents might be acquiring individual rights to the
children of intervenor-defendants as a result of the sign
ing of the foster care placement instrument.
35. In signing the instruments intervenor-defendants
natural parents are led to believe or rely on the implicit
representation of the foster care placement instrument
and on explicit representations by Social Service repre
sentatives that the foster care placement is only with a
Social Sendee official or an authorized agency and not
with individual foster parents.
36. On information and belief, inten-enor-defendants
and the class they represent would not place their chil
dren in foster care if they believed that placement would
be with an individual foster family and not with public
agencies.
Intervenor Defendants First Amended Answer
and Cross Claim
58a
As a F ifteenth A ffirmative Defense
(not before the Court)
* # *
Intervenor Defendants First Amended Answer
and Cross Claim
Class A llegations
40. Intervenor-Defendants seek to defend this action
and to cross claim as a class under the Federal Rules of
Civil Procedure 23 (a), 23(b)(1)A , 23(b) (1)B, and 23(b)
(2) .*
41. The class which intervenor-defendants, Rodriguez,
Diaz, Robins, Shabazz and Collazo represent is that of all
parents who have children in foster care placement under
the aegis of one or more defendants and who placed their
children by signing the form “ Authorization for Placement
o f Child in Foster Care” or :the form “Authorization to
Place Child in Foster Care” (forms annexed). This form
of foster care placement is commonly referred to as “Vol
untary Foster Care Placement.” There are currently at
least 7,000 parents in this class.
# # *
A s AND FOR A CROSS-CLAIM AG AIN ST DEFENDANTS
D umpson, Beine and Dall
Preliminary Statement
46. Intervenor defendants, Rodriguez, Diaz, Robins,
Shabazz and Collazo on behalf of themselves and all
* Boilerplate allegations omitted.
59a
other persons similarly situated assert a cross-claim
against Defendants Dumpson, Beine, Dali pursuant to
U.S.C. 1343 (3) (4), 42 U.S.C. 1983, 22 U.S.C. 2201, 2202,
and Rule 57 and Rule 13 (g) of the Federal Rules of Civil
Procedure. Intervenor defendants seek to have this Court
declare that a parent who has “ voluntarily” placed a child
in foster care with the defendants is entitled to prior
notice and a hearing when defendants propose to move
intervenors’ children from one foster home or institution
to another foster home or institution. Intervenor defend
ants’ natural parents claim that defendants failure to pro
vide natural parents and members of their class with such
notice and hearing violates their constitutionally protected
rights as parents without due process of law and denies
them the equal protection of the laws.
47. Intervenor natural parents placed their children in
foster care on a temporary basis in order to deal with
problems or crises in family life such as illness, destitu
tion, or marital conflict. They were required to sign the
authorization forms annexed hereto as Exhibit A or B.
Defendants social services officials placed their children in
foster homes pursuant to license and contract directly or
through semi-public voluntary-authorized agencies.
* # *
49. On information and belief, after the children of
Intervenor Diaz entered foster care they were placed by
the Commissioner of Social Service at the New York
Foundling Hospital and from January to June, 1974, the
children—five siblings— stayed in the nursery maintained
by the Agency.
Intervenor Defendants First Amended Answer
and Cross Claim
60a
50. On information and belief, sometime in May, 1974
Mr. Rodriguez, a worker from the Agency told Mrs. Diaz
that they were planning to move the children into several
foster homes.
51. On information and belief, counsel for Mrs. Diaz
telephoned Mr. Rodriguez and Mrs. Blatt, a worker at the
Division on Inter-agency Relations o f the Department of
Social Services Agency and an agent and employee of
defendants social service officials and requested that the
children not be moved because a placement of the children
would be challenged in legal proceedings and there was a
possibility that they might be able to come home in several
months.
52. On information and belief, counsel for Intervenor
Diaz requested that the children not be moved because
the children should be spared an unnecessary move and in
addition, they would suffer by being separated from one
another. On information and belief, Mrs. Blatt, agreed
to hold up the proposed move o f the children. Neverthe
less, in early June 1974 the children were separated and
moved to two separate foster homes.
53. On information and belief, Intervenor Diaz received
no formal notice of the proposed move, nor was she ever
advised that she had a right to ask for a hearing to pro
test the move.
* * *
60. The authorization to place children in foster care
annexed hereto as Exhibit B consequently provides that
Intervenor Defendants First Amended Answer
and Cross Claim
61a
the parent has a right to participate in planning for her
child.
61. The decision to remove a child from one foster
home or institution to another is always important to the
child, and to the child’s parent who retains the primary
interest in her child’s development. Therefore, her ability
to participate in making the decision concerning the mov
ing of her child in foster care is an essential aspect of
planning for the child.
62. On information and belief, the move of a child can
also have a negative affect of the parent’s ability to main
tain contact with the child and this is an independent
reason why the moving of a child in foster care might
affect its parents’ interests.
63. On information and belief, the moving of a child in
foster care is an occasion to determine whether the child
should be returned home and in this respect also a re
moval of a child in foster care affects the interest of both
parent and child.
* * #
65. The failure to provide notice and an opportunity
for a prior hearing to parents before their children are
moved from institutions or foster homes to institutions
or foster homes, as described above, deprives the inter-
venor-defendants of parental rights without due process
of law and violates State Law.
Wherefore, intervenor defendants pray that this court
enter an order,
1. Dismissing the complaint herein.
Intervenor Defendants First Amended Answer
and Cross Claim
62a
2. Declaring that intervenor defendants represent
a class of natural parents whose children have been
placed with defendants pursuant to an Authoriza
tion executed by the parents.
3. Declaring that intervenor-defendants are entitled
to adequate notice and an opportunity for a due
process hearing before their children are moved by
defendants from one foster home or institution to
another.
4. Such other and further relief as to the court
may seem just.
Marttie L ouis T hompson
Community Action for Legal Services Inc.
Attorney for Intervenor Defendants
335 Broadway
New York, New York 10013
966-6600
L ouise Gruner Gans
T oby Golick, of Counsel
Intervenor Defendants First Amended Answer
and Cross Claim
G3a
A uthorization for P lacement of Child in A gency
Case No. 3109678
This is to certify that I, Edwin & Naomi Rodriguez,
residing at 1030 Nelson Ave., Bronx, am the parents
(Relationship) of Edwin Rodriguez (Name) 2/6/73 (Age)
and that I authorize the Commissioner of Social Services
of The City of New York or his duly authorized repre
sentatives to place the said child or children in any duly
authorized agency as defined in the Social Services Law
of the State of New York.
I specifically agree and consent that if the child or
children hereinbefore named or any of them, while receiv
ing care in any authorized agency or society for preven
tion of cruelty to children, is found to be in need of
surgical or medical treatment, that such surgical and
medical treatment may be administered under the direc
tion of the authorities of the said authorized agency or
society for the prevention of cruelty to children without
further action on my part, and that such tests or examina
tion as they deem necessary may be given to the said
child or children for the purpose of determining the need
of the said child or children for medical or surgical care.
I further authorize the authorities of any authorized
agency or society for the prevention of cruelty to children
to give such child or children any treatment, inoculation
or vaccination for immunization against contagious dis
eases as in their judgment may be necessary for the pro
tection of such child’s or children’s health.
I f I do not visit the child or children hereinbefore
named while in an authorized agency, as defined in the
Trial Exhibit “A ”
64a
Social Services Law of the State of New York, for a
period of twelve successive months or more and do not
furnish a reason satisfactory to the Commissioner of
Social Services of The City of New York or his duly
authorized representatives for my failure to do so, the
Commissioner of Social Services of The City of New
York, in accordance with the authority vested in him by
the Social Services Law of the State of New York, the
Administrative Code of The City of New York, and the
Domestic Relations Law of the State of New York, has
the right to and may, if in his judgment it shall be for
the best interest of the child or children hereinbefore
named so to do, place out through a duly authorized
agency the child or children named above in a free family
home, with a view to subsequent adoption.
In witness whereof, I hereunto set my hand this 29 day
o f March, 1973.
Signed in the presence of
Trial Exhibit “A ”
E dwin R odriguez
Signature of Parent or Guardian
X*
* Naomi signs with a “ X ” .
65a
A uthorization to P lace Child in F oster Care
HUMAN RESOURCES ADMINISTRATION
SPECIAL SERVICES FOR CHILDREN
Case No. 3485802
I (We) Robins, Mary, residing at (House No. and
Street) 1267 Grant Ave. (Apt, No. or C/O) 6E (Borough
or P.O.) Bronx NY (Zip) 10456 (are) the (mother)
(father) (legal guardian) of the child Robins, Corrie born
on 9-3-68 and I (we) authorize the Commissioner of Social
Services of the City of New York to place the child in a
duly authorized agency as defined in the Social Services
Law of the State of New York. I (We) understand that
the Commissioner will inform me (us) of the agency with
which the child is placed. I (We) also understand it is my
(our) responsibility to keep that agency informed of (our)
whereabouts and my (our) plans to resume caring for the
child and of any delays which make continuation of place
ment necessary.
Placement is required because I (we) am (are) unable
to make adequate provision for the support, maintenance
and supervision of the child in his (her) own home or
with relatives or friends.
I (We) anticipate placement will be required for no
longer than 6 month(s). I (We) understand that when the
reason for placement no longer exists, I (we) should ask
for the child’s return and that the Commissioner will re
turn the child, provided that the Commissioner is satisfied
that I (we) am (are) able to care for the child. In plac
ing the child under the Commissioner’s care, I (we) con
Exhibit B, Annexed to Answer
6Ga
sent to the administration of such immunization, tests
and treatments, including dental and surgical treatment,
as are considered necessary for the well-being of the child.
I (We) understand that I (we) will be consulted, if pos
sible, whenever surgery is necessary. However, in the
event that the child requires emergency surgery or treat
ment, I (we) authorize the Commissioner to consent to
such surgery or treatment if, for any reason, I (we) can
not be consulted. I (We) have been further informed and
understand that:
1. I (We) and the agency with which the child is placed
are expected to work cooperatively planning for the
child and that the agency will offer me (us) whatever help
is available to enable me (us) to decide wdiat is best for
the child. While the child is in placement, it is my (our)
right and responsibility to visit the child regularly and to
actively participate in planning until the child is to have
the benefit of a permanent home, either with me (us) or
in an alternative setting.
2. Under the laws of the State of New York if, for a
period of six successive months, I (we) do not keep in
contact with the child, my (our) failure to do so may be
considered abandonment. In addition, if, for a period of
one year, I (we) have not made efforts to plan for the
child, my (our) failure to do so may be considered perma
nent neglect under the law. I f either of the foregoing
should occur, Court action may be taken to terminate my
(our) parental rights.
3. Pursuant to the provisions of Section 358a o f the
Social Services Law, a proceeding may be initiated in the
Family Court to obtain Court approval of this instrument
Exhibit B, Annexed to Answer
67a
and the transfer of the case and custody of the child to
the Commissioner of Social Services of the City of New
York. In connection with such proceedings, I (we) do
hereby consent to the jurisdiction of the Family Court
over such proceedings.
4. I (We) waive notice of any such proceeding and
service of the petition on me (us) as well as a hearing
thereon. I (We) consent that the Family 'Court Judge’s
determination be made based, solely upon the petition and
other papers if any, that are submitted to the Court and to
the entry of an order approving this instrument and the
transfer of care and custody of the child to the Commis
sioner o f Social Services of the City o f New York, based
upon said determination.
Dated this 8th day of January, 1974
Mary R obins
Signature of Parent or Guardian
Signed in the presence of
Geraldine Underwood
Department of Social Services
Exhibit B, Armexed to Answer
68a
UNITED STATES DISTRICT COURT
Southern District of New Y ork
74 Civ. 2010 RLC
Affidavit of Naomi Rodriguez
Organization of F oster F amilies for E quality
and R eform, et al.,
Plaintiffs,
—against—
James Dumpson, et al.,
Naomi R odriguez, et al.,
Defendants,
Intervenor-Defendants.
State of New York )
V o o •
County of New Y ork j
Naomi R odriguez, being duly sworn, deposes and says:
1. That I am the mother of Edwin Rodriguez, a baby
born on the 6th day of February 1973. Edwin Rodriguez
was placed by me in foster care with the Commissioner
of Social Services of the City of New York and through
him, with the Harlem Dowling Children Service Inc., an
authorized agency.
69a
2. For some time prior to tlie birth of my child, my
husband had not been treating me well and had lost his
temper and struck me on many occasions. Since I am
blind I was very concerned as to how I was going to care
foi and protect my infant child under these circum
stances. The hospital social worker suggested that I con
sider putting the baby in foster care until my problems
with my husband were worked out and I accepted the
social worker’s suggestion that foster care might be a
temporary solution.
3. After my baby was bom, he required eye surgery
and remained in the hospital and about the time he was
ready to be discharged, Ms. Ingram, a social worker from
the Bureau of Child Welfare, came to my house for me
to sign a form to place my child in foster care. I told
Ms. Ingram that I only wanted to place my baby tem
porarily for a period of up to six months so as to give
me a chance to straighten out my marital difficulties.
Ms. Ingram expressly told me that she agreed to the con
ditions under which I wanted to place my child and as
sured me that I could have my baby back when I wanted
him.
4. Ms. Ingram read the form, Authorization for Place
ment of Children in Foster Care, out loud to me before I
signed it but I didn’t understand the language of the form
very well since it is full of legal and other words that I
didn’t understand, but I signed the form anyway because
the important tiling to me was Ms. Ingram’s assurance
that I was placing the baby in foster care only tempo
rarily to resolve my marital difficulties and that I would
have no trouble getting him back. I thought that I could
depend on what Ms. Ingram said to me and didn’t think
it was important for her to write it down.
Affidavit of Naomi Rodriguez
70a
5. Ms. Ingram told me that I would be able to visit my
baby but she didn’t tell me how often these visits would
be.
6. Some time after I signed the form my baby, Edwin,
was put in charge of the Harlem Dowling Children Serv
ice, Inc., an agency, and through them in a foster home.
My social worker at the agency is a Mrs. Green.
7. For the first few months after I signed the place
ment from Harlem Dowling Children Service Inc. didn’t
let me visit my child. After that, they generally let me
see the baby once or twice a month. Though I asked
Mrs. Green to let me take my baby home for weekends, she
refused my request.
8. In May 1973 I separated from my husband and went
to live with my mother. Since I was no longer living
with my husband, I felt it was safe to take the baby home
and asked Mrs. Green to return my child to me. Mrs.
Green never gave me a definite answer to my request and
I regularly kept calling her and going to see her to ask
when she would return my child only to have my ques
tions ignored.
9. In January 1974, finally, Mrs. Green told me that
the agency was refusing to return the child because of
my blindness and because I needed mobility training to
cope with my blindness, and needed a larger apartment.
10. I didn’t place my baby in foster care because of my
blindness. I am the mother of an older child, Elizabeth
Pauline, who was born on February 25, 1971 and I had
always been able to take care of her. I am close to my
Affidavit of Naomi Rodriguez
71a
family and they have always helped me so that my blind
ness was not a handicap. Throughout this time and from
the very beginning I felt that I was completely at the
mercy of the agency and had no rights. At no point did
the agency tell me that since I wanted my baby back I
had a right to go to court and ask the court to return
my child to me. It wasn't until April 1974 that my mother
suggested that perhaps I should see a lawyer, and I con
sulted an attorney at Bronx Legal Services. At no time
before or after I agreed to place my child in foster care
and signed the foster care form did anyone ever tell me
that foster parents with whom my baby was placed might
claim that they had a right to keep my child. The agency
tells me very little about my child and I don’t even know
whether he has been in one foster home or several. I f I
had known what putting my child in foster care really
meant: that I would have very litle chance to see my baby
and that my baby would not be returned to me when I
asked for him and how much I would be at the mercy of
the agency, I would never, never, never have agreed to put
my baby in foster care or signed the form they gave me
to sign.
11. I am now told by my lawyer that foster parents
are claiming that they have equal or greater rights than
I to children like mine. I f I had ever been told, or known,
that individual foster parents could be given such rights,
I never, never, never would have placed my child in foster
care.
12. I was assured that my baby would be returned to
me as soon as I resolved my marital difficulties, which I
Affidavit of Naomi Rodriguez
72a
had done barely two months after I signed the form, but
the promise turned out to be a lie.
Affidavit of Naomi Rodriguez
Naomi R odriguez
Sworn to before me this
17th day of October, 1974.
Witnessed by (Illegible)
L ouise Gruner Gans
Notary Public, State of New York
No. 31-406525
Qualified in New York County
Commission Expires March 30, 1975
73a
UNITED STATES DISTRICT COURT
Southern D istrict of New Y ork
74 Civ. 2010 RLC
Affidavit of Sara Ruff
Organization of F oster F amilies for E quality
and R eform, et al.,
Plaintiffs,
— against—
James Dumpson, et al.,
Defendants,
------------------- 4-----------------------.
State of New Y ork
County of New Y ork
Sara R uff, being duly sworn, deposes and says:
1. I am the mother of Rosalyn and Rosemarie, two
little girls bom on May 25, 1970. In June 1970 I signed
an Authorization for Placement of Children in Foster
Care, a copy of which is annexed hereto.
2. I signed the form right after I had given birth to my
children while still in the hospital. The form was brought
to me by a representative of the Commissioner of Social
Services of the City of New York. I signed the foster
74a
care placement form because I was a minor with no apart
ment or money of my own. I was told by a Department
of Social Services worker that the placement was only
temporary, since I did not want to place my children for
adoption. I didn’t understand what the form that I signed
meant but felt that I had no choice but to sign it anyway.
3. Shortly after I signed the foster care placement form
my children were taken to the New York Foundling Hos
pital and I was told that from that time on they were the
agency caring for my children. For a year after my chil
dren were taken to the New York Foundling Hospital
they remained in Manhattan and I was able to visit them
every week at the New York Foundling Hospital. Then,
in the Spring of 1971 the New York Foundling Hospital
told me they were planning to move my children. Since I
lived on Staten Island, I asked them to find a foster home
in Staten Island or in Manhattan so that I could continue
seeing the children often. Instead, I was told that the
children were being moved to a foster home in West
chester County and my objection that it was very far away
for me, made no difference.
4. Some time in June 1971 the children were placed in
a foster home in Westchester County. From then on I
could see my children only at the Westchester office of the
New York Foundling Hospital in Yonkers and I was not
permitted to see them more often than once a month.
5. The trip to Yonkers from Staten Island took about
three hours each way and cost over $3.00 each way, mak
ing the visits extremely difficult and expensive for me.
When the children were moved from Manhattan to West
chester I was not given a notice and a right to object to
Affidavit of Sara Ruff
75a
the move of my children at a hearing, yet the drastic re
duction in the frequency with which I could see my chil
dren, the enormous difference in traveling time and cost
imposed a severe burden and loss on me.
6. While the children were in Manhattan and I saw
them weekly we developed a warm relationship. There
fore, from the point of view of the children as well, I
didn t think it was right to move them to a place where
they would be able to see me, their mother, so much less
often.
7. My children were placed in the home of a childless
couple, who now do not want to return them to me. Since
tlie foster parents have had my children for more than
two years, they can and are now opposing me in my claim
for the return of my children in a habeas corpus proceed
ing and in a foster care review proceeding pursuant to
section 392 of the Social Services Law in the Family
Court. I had never been told, when I signed the form or
later, that foster parents could refuse to return my chil
dren to me.
Affidavit of Sara Ruff
/ s / Saba R uff
Sworn to before me this
21st day of October 1974.
L ouise Gruner Gans
Louise Gruner Gans
Notary Public, State of New York
No. 31-406525
Qualified in New York County
Commission Expires March 30, 1975
76a
PLACEMENT AGREEMENT
Form M-912u
Rev. 12/15/67
T he City of New Y ork— Department of Social Services
B ureau of Child W elfare
2 Lafayette Street
New York, N.Y. 10007
A. We, as foster parents of children boarded in our home
by the Department of Social Services, Bureau of Child
Welfare, understand that
1. Board is paid for each child at the established
monthly rate.
Clothing for each child is provided by cash allow
ance to the foster mother; provisions are made for
health and medical care; and reimbursement is made
for certain incidental expenses as explained in the
Foster Parents’ Manual.
2. The Department of Social Services provides the
services of a Caseworker who makes regular visits
to the foster home, and helps the family with plans
for the child’s progress and development, and with
special problems as they arise.
3. Visiting between the child and the relatives, whether
in the home or elsewhere, is arranged by the De
partment of Social Services.
4. The Department of Social Services has the responsi
bility for planning for the child, including decisions
Exhibit “ A ”
77a
for his removal from the foster home, either to his
own family or placement elsewhere.
B. As foster parents we agree to the following:
1. We will assume responsibility for the day-to-day
care of the child and wall share with the child the
activities in our home, church and community.
Through the Caseworker, we will keep the Depart
ment of Social Services aware of the child’s prog
ress in our home.
2. We will notify the Department of Social Services
of any expected change in our household, such as
change in sleeping arrangements for the foster
child, change in family composition, a move to a
new address, and agree not to board or lodge chil
dren or adults from any other source or obtain em
ployment outside the home without first obtaining
the approval of the Department of Social Services.
3. We agree to cooperate with the Department of So
cial Services in arrangements for visits between the
child and his relatives.
4. We agree to obtain the permission of the Depart
ment of Social Services before taking the child away
from our home on an overnight visit or for a longer
period.
5. We will let the Department of Social Services know
at once if medical care is indicated for the child.
The foster mother will take the child to the appro
priate hospital, clinic, or physician, as arranged
with the Caseworker.
Exhibit A
78a
6. We agree to cooperate and comply with all plans
of the Department of Social Services for the trans
fer or discharge of a child from our home.
Christiane Goldberg
Signature of Foster Mother
R alph Goldberg
Signature of Foster Father
Bureau of Child Welfare
Exhibit A
Caseworker ILLEGIBLE Date May 22, 1963
79a
Catholic Guardian Society
122 East 22nd Street
New York, N. Y. 10010
Telephone: ORegon 7-5000
A greement Between Catholic Guardian Society
and F oster P arents
I. When a child is accepted for board by Foster Par
ents, it is with the understanding that the child
shall be returned to the Agency upon request, re
alizing that such request will only be made for
good reason. I f for some reason the Foster Par
ents wish to have a child transferred from their
home, sufficient time shall be given for the Agency
to make suitable plans for the child.
II. Catholic Guardian Society agrees to provide a
monthly stipend for each child, according to age.
III. Catholic Guardian Society also agrees to provide
the following:
1. Casework service for each child.
2. Use of psychiatric, psychological, vocational
services as they are needed.
3. Clothing allowance every three months.
4. Reimbursement for medical, dental and eye
examinations and for prescriptions given.
Exhibit B
80a
Extensive work should be discussed with
Worker prior to the work being undertaken.
5. Reimbursement for school textbooks and tui
tion and carfare to and from the Agency
if prior approval has been given by the case
worker.
IV. Catholic Guardian Society acknowledges that un
der the law Foster Parents, who care for a child,
or children for twenty-four consecutive months,
shall have preference for adoption if they so de
sire.
V. Foster Parents agree to provide each child with
the following:
1. Competent adult supervision at all times.
2. Religious training in the specific faith of
each child and responsibility for weekly at
tendance at church services.
3. Adequate diet, clothing, bathing, toilet and
lavatory facilities.
4. School supplies, such as pencils, pens, note
books and paper and school carfare.
5. Medical supplies usually found in family
medicine cabinents.
Exhibit B
6. Haircuts.
81a
7. Allowance for each child. (Please refer to
“ Guide for Foster Parents” ).
8. Shoe Repair.
Exhibit B
Catholic Guardian Society
Archdiocese of New York
James P. O’Neill
James P. O’Neill
Executive Director
We agree to accept children for board subject
to the foregoing rules and regulations of the
Catholic Guardian Society.
Husband’s Signature
Date: 2/20/71
JPO’N :is
Madeline Smith
W ife’s Signature
82a
Answer of New York City Defendants
UNITED STATES DISTRICT COURT
Southern D istrict of New Y ork
74 Civ. 2010 (RLC)
Organization of F oster, F amilies for E quality
and Reform, et al.,
Plaintiffs,
—against-
James Dumfson, et al.,
Defendants.
------------------ ♦ - --------------------------------------------
Defendants, Dumpson, Beine and Dali, by their attor
ney, W. Bernard Richland, Corporation Counsel, answer
ing the “ Second Amended Complaint” ,
1. Deny the allegations set forth in paragraph “ 1” there
o f except admit that this action was brought to establish
the validity of said allegations.
2. Deny the allegations set forth in paragraphs “ 2” and
“ 3” thereof.
3. Deny the allegations set forth in paragraph “4” there
of except admit that plaintiffs will attempt to establish
the validity of the first sentence thereof.
83a
4. Deny the allegations set forth in paragraphs “ 5” ,
“ 6” , “ 7” , “ 8” , “ 9”, “ 10”, “ 11” , and “ 12” thereof.
5. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations set forth in para
graph “ 13” thereof.
6. Deny the allegations set forth in the first sentence of
paragraph “ 15” thereof and deny knowledge or informa
tion sufficient to form a belief as to the truth of the alle
gations set forth in the last sentence of said paragraph.
7. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations set forth in the
last phrase of paragraph “ 16” thereof.
8. Deny the allegations set forth in the first sentence
of paragraph “ 17” thereof.
9. Deny the allegations set forth in the second sentence
of paragraph “ 18” thereof and respectfully refer the Court
to New York Social Service Law §395 et seq. for their
full content and legal effect.
10. Deny the allegations set forth in the last phrase of
paragraph “ 21” thereof.
11. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations set forth in para
graphs “ 23” and “ 24” thereof.
12. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations set forth in para
graphs “ 26” and “ 27” thereof except deny the allegations
set forth in the first sentence o f said paragraph “ 26” .
Answer of New York City Defendants
84a
13. Deny the allegations set forth in paragraphs “ 28”
and “29” thereof.
14. Deny the allegations set forth in the first sentence
of paragraph “ 31” thereof.
15. Deny the allegations set forth in paragraphs “ 32” ,
“ 33” , “ 34” , “ 35” , “ 36” and “ 37” thereof.
16. Deny the allegations set forth in the first sentence,
the first half of the second sentence and the third sentence
of paragraph “ 38” thereof.
17. Deny the allegations set forth in paragraphs “ 39” ,
“40” and “41” thereof.
18. Deny the allegations set forth in the last phrase of
paragraph “ 43” thereof.
19. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations set forth in para
graphs “44” , “45” , “46”, “47” and “48” thereof.
20. Deny the allegations set forth in paragraph “ 50”
thereof.
21. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations set forth in para
graphs “ 51” and “ 52” thereof.
22. Deny the allegations set forth in paragraphs “ 53” ,
“ 54” , “ 55” , “ 56” , “ 57” , “ 58” , “ 59” , “ 60” , “ 61” , “ 63” , “ 64” ,
“ 66” , “ 67” , “ 68”, “ 69” , “ 70” , “ 71” , “ 72” , “ 73”, “ 74”, “ 75” ,
“ 76” and “ 77” thereof.
Answer of New York City Defendants
85a
F urther A nswering the Complaint and as a F irst
Separate and Complete Defense T hereto, Defend
ants A llege:
23. The complaint fails to allege a deprivation of rights
within the meaning of the Fourteenth Amendment to the
Constitution and thus this Court lacks subject matter jur
isdiction over this action.
Answer of New York City Defendants
As a Second Separate and Complete Defense T here
to, Defendants A llege:
24. The complaint fails to state a cause of action.
As a T hird Separate and Complete Defense There
to, Defendants Allege:
25. The statutes and regulations herein under attack
are sufficiently protective of and do not deny such rights
as are possessed by the plaintiffs herein.
As a F ourth Separate and Complete Defense T here
to, Defendants A llege:
26. Procedures recently adopted by the City defend
ants herein are sufficiently protective of and do not deny
such rights as are possessed by the plaintiffs herein.
W herefore defendants pray that this Court enter judg
ment in their favor dismissing the complaint and declar
86a
ing the statutes and regulations herein under attack as
constitutional and not violative of plaintiffs’ rights.
Yours, etc.
W. Bernard R ichland
'Corporation Counsel
Attorney for New York City
Defendants
Office & P. 0. Address:
Municipal Building
New York, New York 10007
566-4619/2192
B y: E lliot P. H offman
Assistant Corporation
Counsel
Dated: February 28, 1975
Answer of New York City Defendants
87a
UNITED STATES DISTRICT COURT
Southern D istrict of New Y ork
74 Civ. 2010 (RLC)
Affidavit of Carol J. Parry
Organization of P oster F amilies for E quality
and R eform, et al.,
Plaintiffs,
—against-
James Dumpson, et al.,
Defendants.
------------------4-----------------------
State of New Y ork J
County of New Y ork j ss"
Carol J. Parry, being duly sworn, deposes and says:
1. I am the Assistant Commissioner for Special Serv
ices for Children in the New York City Department of
Social Services, and I submit this affidavit in support of
the proposed judgment submitted by the New York City
municipal defendants. I am a successor to defendant
Beine in this action.
2. I have a Master’s Degree in Social Work from the
University of Connecticut School of Social Work and I
88a
am a Board member of the National Association of Social
Workers. I have been an instructor in field work at both
the Columbia University School of Social Work and the
Hunter College School of Social Work. I have also been
a Faculty Associate at the New School for Social Re
search. This affidavit is submitted by me both in my ca
pacity as a public official and as a professional social
worker.
3. On May 20, 1974, when I assumed my present posi
tion, this agency was in the process of revising its pre
removal procedures. That revision resulted in the pro
cedure described in the Court’s recent opinions. While
this litigation concededly was the impetus for the revi
sion, the underlying determinations to change the pro
cedure was made from a different perspective than the
thrust of this litigation.
4. Foster care, as viewed by the public policy of this
state and by this agency, is a temporary but necessary
alternative to a child residing with either its natural par
ents or adoptive parents. Admittedly, the word, “ tem
porary” is often as much a hope as it is a fact, but our
goal remains to transfer as many children as soon as pos
sible out o f foster care.
5. Foster care is provided by either a direct relation
ship between the City and the foster parent or by con
tract with approximately ninety voluntary agencies. Those
agencies, Avith whom more than 85% of the foster children
are placed, then contract directly vdth the foster parents
and supervise the foster homes.
Affidavit of Carol J. Parry
89a
6. We, of course, agree with and subscribe to the con
clusion of this Court regarding the absence of any legal
entitlement of foster parents to maintain a foster care
relationship. However, because we entrust foster chil
dren to their care and day to day supervision, their ob
jection to the termination of a particular relationship is
important to us. A hearing, similar to that originally
suggested by plaintiffs, was thus viewed by this agency
as an appropriate, although by no means perfect, method
by which foster parents could call our attention to what
they perceive as an improper decision.
7. In initiating our new procedures we assumed that
there would be relatively few instances in which the foster
parent would dispute a decision to remove a foster-child
from their home. In those instances where there would
be disagreement the hearing would serve both as a method
of resolving such disputes and of monitoring the opera
tions of the agency with a minimum reallocation of ex
tremely limited resources.
8. Our assumption regarding the relative infrequency
of disputed removals has been proven correct as evidenced
by the fact that there were only 16 hearings during all
of 1975. (I am informed by counsel that plaintiffs have
implied, if not directly alleged, that some of the volun
tary agencies with whom we contract are not following the
presently mandated procedure, thus minimizing the num
ber of hearings requested. While this may be true to
some extent, they have not called to our attention a single
specific instance of such failure. We therefore feel jus
tified in assuming that even if there were full compli
ance with presently mandated procedures, the number
of requested hearings would not be significantly greater).
Affidavit of Carol J. Parry
90a
9. In contrast to the extremely limited number of re
quested hearings, which were the only type of hearings
discussed in this litigation prior to the decision, the de
cision mandates between 1,600 and 4,200 hearings a year,
depending on its ultimate applicability.
10. In the short time available to us since the deci
sion, we have assembled data in an effort to estimate the
implications of this decision. Based on a study of the
months of December 1975 and January 1976 we expect
that during the next year these will be at least 4,200
removals or changes of status of children who have been
in foster care in a particular home for more than one
year. Approximately half of these children will be dis
charged from foster care. Of those discharged at least
thirty-five percent will be returned to their natural par
ents with another five percent returning to relatives other
than natural parents. Twenty-five percent will be adopted
by their foster parents, and another five percent will be
adopted by others. The remaining children will be dis
charged because they reach the age of majority.
11. Of those children moved Avithin foster care at least
a third Avail be moved as a result of the request of a
foster parent, with four to five percent more being moved
because of other reasons relating to the unavailability
of the foster home, i.e. the death of the foster parent
or movement out of state. These particular estimates
were verified by a random but statistically significant
check of the transfers in tAvo of our direct care offices
and by data proAuded by the Child Welfare Information
Service Inc. based on a sampling of voluntary child care
agencies. The myriad of other reasons for transfer have
Affidavit of Carol J. Parry
91a
not been tabulated, but they include transfer to another
foster home for a possible adoption, reuniting siblings and
inadequacy of the foster home.
12. The order which we have submitted herewith re
flects both our imderstanding of the Court’s decision and
our concern over the institution of a large new bureau
cratic apparatus prior to our having the opportunity to
fully litigate its appropriateness before this Court and
receiving a final determination from the Supreme Court.
13. Although the various figures above cited include in
stances of adoption, we assume that they are not to be
included in this hearing process as adoptions take place
only after judicial review (Family 'Court Act §641). Ad
ditionally, we view adoptions by the foster parents as out
side the ambit of this Court’s decision as they do not
represent removal from a home but merely a change in
status.
14. In addition to adoptions, there are numerous other
instances of removal pursuant to various Court orders,
the most common being writs of habeas corpus. We have
specifically excluded those situations as the Court pro
ceedings themselves provide for hearings.
15. The general concern shared by all the parties to this
litigation regarding the need for a speedy determination
is heightened in emergency situations. Our current pro
cedures exclude emergency situations from their applica
bility. (In defining emergency we have been guided gen
erally by the definitions of neglected and abused children
set forth in Social Services Law Section 371). Regardless
of the speed at which a hearing procedure moves, even
Affidavit of Carol J. Parry
92a
a day’s delay in the instances enumerated in that statute
can have repercussions of a far more serious nature than
a possible wrongful removal. We do not understand the
plaintiff to contend otherwise. Our proposed order has
therefore excluded those instances from the hearing pro
cedure.
16. At present there is no unit in our agency designed
to exclusively represent children. However every de
cision relative to children is made by one or more experi
enced case workers in accordance with the best interest of
the child under state law. While the ultimate affirmance
of the Court’s full decision might administratively war
rant the establishing of such a unit, we see nothing in the
opinion mandating its establishment. The clear implica
tion of the Court’s opinion is that the individual repre
sentative be independent of the original decision to re
move the child and we have so provided.
17. In addition to the decretal paragraphs reflecting
the Court’s opinion we have requested both a stay of en
forcement and reargument of portions of the decision.
18. As Judge Pollack anticipated in his dissenting opin
ion, the provision of hearings when not requested by the
foster parent has come as a surprise to this agency. Both
the underlying assumptions leading to this provision and
the resulting problems are of an entirely different magni
tude than results predictable from any o f the claims made
in this litigation.
19. This agency has operated, as any agency must, un
der the assumption that its decisions are neither arbi
trary nor capricious. There are literally thousands of
significant decisions made each day by this agency and
Affidavit of Carol J. Parry
93a
the contracting agencies. Admittedly the decision to trans
fer a child out of a foster home is one of the most sig
nificant made. These decisions are not lightly made how
ever, as evidenced by the fact that other than discharges
there was only one move in the last year for each ten
members of the plaintiff class. The basic correctness of
these approximately sixteen hundred transfers is further
evidenced by the fact that only one foster parent in a
thousand sought to review the decision. We are thus con
fronted with a mandate, if a stay is not granted pend
ing reargument, that we conduct several thousand hear
ings a year without the opportunity to rebut the under
lying premise on which the Court based its mandate.
20. What is perhaps more significant is the absence of
any showing that an uncontested hearing, when such hear
ings are held by the thousands, will provide any better
results than a decision-making process based on the con
tinuing relationship between caseworker and family.
21. The presumption that a decision is correctly made
is further strengthened when the child is being returned
to its natural parents. The Court in its decision has ac
knowledged the primacy of the natural family relation
ship over the foster family. Yet it has mandated hear
ings not only in the seven or eight instances a year when
there is a serious dispute as to the propriety of the re
turn to this natural state, but also in those six or seven
hundred instances where no one disputes the return.
22. We therefore request that the Court give us an
opportunity to fully litigate the need for unrequested hear
ings. I f this opportunity is granted we will demonstrate
(a) the deliberate manner in which decisions are made
Affidavit of Carol J. Parry
94a
(b) the inapplicability of the hearing process to significant
numbers of transfers, particularly those instances in which
the removal is requested (if not demanded) by a foster
parent or teenage child (c) the inordinate costs and de
lays resulting from the granting of these hearings.
23. We also urge upon this Court that it grant a stay
of this decision to the extent provided in our proposed
order. There are neither resources nor personnel present
ly available to institute the procedures under which we
would conduct the thousands of hearings mandated by
the Court’s opinion. Nor would it be just to require us
to set up an entire apparatus when the legal necessity
of such a procedure has not been finally determined.
24. I have been informed by counsel that when the is
sue of a possible stay was raised during a colloquy with
the Court, the Court advised that a stay granted to de
fendants would necessitate maintaining the status quo for
plaintiffs as well. We submit however that maintaining
the status quo in the vast majority of instances, by pro
hibiting uncontested removals, would be inimical to the
best interest of the children.
Affidavit of Carol J. Parry
Sworn to before me this
7th day of April, 1976
s / Carol J. Parry
s / Sharon L. F eigenbatjm
Commissioner of Deeds
City of New York No. 3762
Certificate filed in New York County
Commission Expires March 1, 1977
Child Caring Agency Request For Approval Of:
(Form W-853, 8 pages)
[P hotostats]
(Opposite)
• CHILD CARING AGENCY REQUEST FOR APPROVAL OF:
□ REPORT ON 60-DAY PLAN □ INITIAL SEMI-ANNUAL REVIEW
I- ] ANNUAL
L— 1 REAUTHORIZATION
SUBSEQUENT INITIAL
□ SEMI-ANNUAL f l 18-MONTH
O C W I C U f f C t I— IREVIEW(SI COURT REVIEW
SUBSEQUENT
□ BIENNIAL Q EXTENDED
COURT REVIEW(S) CARE
ON BEHALF OF
F irs t M .l. Date o f B irth Type o f P lacem ent In i t ia l D ate P laced 392 SSL D ocket No. C ity B ill
O v o l u n . C 358a A pp 'd
P lacem ent Date in you r agency If any Number
1 )C t— P I'd C T 392 A dd ’ d
Surname o f C h ild
TO: THE CITY OF NEW YORK, DEPARTMENT OF SOCIAL SERVICES,
SPECIAL SERVICES FOR CHILDREN
□ 80 Lafayette Street, New York, N.Y. 10013
□ 192 East 151st Street, Bronx, N.Y. 10451
□ 1274 Bedford Avenue, Brooklyn, N.Y. 11216
□ 165-15 Archer Avenue, Jamaica, N.Y. 11433
□ 2 Lafayette Street, New York, N.Y. 10007
C h ild 's S oc ia l S e cu rity Number C h ild S tate C ase No.
DATE PREPARED .
Month Day Year
FROM:. 1
N a m e o f A g e n c y State A gency Code No.
D iv is io n
Name o f A gency w ith m a jo r casew ork r e s p o n s ib i l i t y .
Telephone No.
SSC Case Surname Case Number Team /C s ld . D iv is io n /B o ro u g h O ffice Worker Telephone No.
)ata
C ross-R eference (O ther Names Known by) Type o f P lacem ent F a c ili ty
3 f- h . Q | " s >- □ g . r. Q g . h . Q a . o . b. h .
P.A. C ase N um ber/C ategory Incom e M ain tenance Center
Name and A ddress o f Foster Parents o r F a c ili ty
C h ild ’s S ib lin g s
F irs t
D ate of
B irth
WHEREABOUTS
If a t home, l is t address
If in p lacem ent, name o f agency
Type o.
Placem ent
I f any
In it ia l
Placem ent
Date
I f any
C h ild 's F a th e r's Fu ll Name
Social S ecu rity Number
M o the r's F u ll Name ( in c l. M aiden Name)
S ocia l S e cu rity Number
L O rig ina l Reason fo r P lacem ent
FOR SSC USE ONLY:
60— Day P lan
In it ia l S em i-Annual Review
Subsequent Sem i-Annual Review(S)
A P P R O V A L F O R
A nnual R eau tho riza tion
Extended Care
Suspended Payment (where app rop ria te )
A pprova l Period
S ignature T it le
FORM W-8S3 P .1. R e v . 7 / 1 5 / 7 5 1 0 0 M -D P M 9 0 8 1 3 3 ( 7 6 )___________
Please answer a il questions, where applicable. (Use additional sheets o f paper, if necessary)
II . C hild in Care
A. Physica l Health ________________ _____ _________
Date of last
physical checkup Height Weight Inoculations given since last report
Date of last
dental checkup
Date of last
ocular checkup
Statement of health. Note diagnosis, treatment and follow-up, where indicated. (Include significant changes, illnesses, or
accidents.)
B. Psychological and P sych ia tric Examinations
Date of last
psychological______ Type of test given I.Q. Score
Date of last
psychiatric Diagnosis* Prognosis
* ls treatment contemplated? Q Yes Q ] No If “ Yes” , indicate why and type of treatment recommended.
C. Fam ily Planning Services (to meet New York State Regulations)
1. For a ch ild in foster home boarding care, 12 years o f age or o lder, has foster parent been notified by required letter
o f the a v a ila b ility o f fam ily planning services? If not, why not? If services were requested, how were they pro
vided?
2. For a ch ild in group care, 12 years o f age or older, were fam ily planning services considered and offered? How were
they provided? If not provided, why not?
D. Social Adjustment
1. Composition and descrip tion of ch ild ’ s liv in g arrangements, includ ing type of ch ild care fa c il ity .
Form W-853, P. 2-75M-828072(76)
Rev. 7/15/75
CONTINUED.
II. D. Social Adjustm ent (continued)
2. D escription of c h ild 's psycho-social and psycho-sexual adjustment, includ ing understanding o f placement.
3. R elationship to peers, agency, community and, i f appropriate, to foster fam ily (include la tte r ’ s own c h ild re rs if any).
E. Educational and Vocational
1. Type o f school, grade leve l, reading and mathematics leve ls , and adjustment.
2. Problem areas and remedial help provided.
3. I f ch ild is 14 years or over, vocational and academic goals.
F. R elig ious Education
Describe re lig ious education provided. I f ch ild has been placed out o f religion, describe sp ec ific arrangements made for
re lig ious tra in ing .
Form W-853, P. 3-75M-828072(76)
Rw. 7/15/75 CONTINUED.
II I. Resources and L iv in g Arrangements of Natural Fam ily
A. Describe fa m ily 's liv in g arrangements and composition of the household.
\
B. F inancia l
1. What is fam ily ’ s current source o f income? Include date(s) and means of ve rifica tio n . I f fam ily is receiving
pub lic assistance, include name and address of Income Maintenance Center and case number.
2. If employed, give name and address o f each person's employer, to ta l income and major expenses. Expenses should
include rent and unusual expenses, such as payments for support, etc.
3. Describe any changes in fa m ily ’ s financ ia l s itua tion since las t report,
moved.
Include fa m ily 's new address, if they have
4. What medical insurance does fam ily have? G ive name of insurance carrier and id e n tifica tio n number.
C. Benefits and Resources
1. Indicate whether ch ild receives any benefits from Social Security, SSI, tru s t funds, law su its, e tc ., or may be
e lig ib le for or entitled to receive such.
2. If natural parent(s) is (are) deceased, give circum stances and date(s) o f death.
IV . P lanning and Goals
A. 1. What is your long-range plan for the child?
Q D is c h a rg e (Please f i l l out Section IV . B.)
O Adoption (Please f i l l out Section IV . C.)
I " ) Continued Care (Please f i l l out Section IV . D.)
Form W-853, P. 4-75M-828072(76)
Rev. 7/15/75
CONTINUED.
IV. Planning and Goals (continued)
A . 2. Has your plan changed since last report? If yes, explain.
3. Has the la s t 24-Month Fam ily Court Review d isposition required a change in plan? I f so, expla in . How has it been
implemented?
COMPLETE EITHER SECTIONS B, C, OR D, ACCORDING TO GOAL CHECKED UNDER“ IV . A .” THEN COM PLETE
SECTION V.
B. Goal: Discharge
1. W ill the ch ild be discharged to natural parents, extended fam ily , s ig n ifica n t others, or self? What is projected dote
to a tta in discharge goal? I f discharge is to se lf, what w ill be the c h ild 's liv in g arrangements and means of support?
2. D iscuss preparation for d ischarge, inc lud ing that for ch ild , natural fam ily , s ig n ifica n t others, and foster fam ily , if
appropriate.
3. I f ch ild is being discharged to fam ily or s ig n ifica n t others, ind ica te to ta l adjustment o f fam ily w ith an assessment of
strengths and weaknesses, includ ing any problem w ith s ib lings in fam ily.
4. What are the present barriers, i f any, to the discharge?
Farm W-853, P. 5-75M-828072(76)
Aw. 7/15/75 CONTINUED.
IV . Planning and Goals (continued)
B. Goal: Discharge (continued)
5. What specific services w ill be offered to overcome these barriers?
C. Goal: Adoption
1. When was the plan for adoption approved?
2. If appropriate, what is the parent’ s a ttitude toward surrender?
3. Is ch ild free for adoption? If so, give the date and method by which ch ild wns freed.
4. Has adoption or subsidized adoption been discussed w ith the foster parents? If not, why not? D escribe attitude of
foster fam ily.
5. I f more than three months have elapsed since the plan for adoption was approved, and ch ild is not yet free, what
steps have you taken to free the ch ild? Expla in .
6. If ch ild has been freed for three months, what steps have you taken to re cru it an adoptive home? On what Adoption
Exchanges has the ch ild been registered?
7. What is projected date to a tta in adoption goal?
8. If you plan to continue contact w ith fam ily and/or s ig n ifica n t others after adoption, please expla in .
Form W-853, P. 6-75M-828072I76)
Rev. 7/15/75 CONTINUED.
IV . D. Goal: Continued Care
1. Problems centering in ch ild which necessita te continued care as a long-range service plan.
(a) C h ild has severe problem
1. Describe c h ild 's problem and explain sp e c ifica lly why i t necessitates continued care as the long-range
service plan.
2. Describe services given ch ild specific to ch ild 's problem.
3. Describe services offered to the natural fam ily and/or s ig n ifica n t others regarding c h ild 's problem.
4. What is antic ipa ted length of time ch ild w ill need continued care?
2. Problems centering in natural fam ily which necessitate continued care as long-range service plan.
(a) Unable to plan
1. Specify parents’ problems which prevent them from adequately caring for ch ild , d e lu d ing serious financia l
mismanagement.
2. Indicate services offered to overcome these problems. E xpla in , includ ing sp ec ific goals. Give fam ily
response to services.
(b) Whereabouts of natural fam ily unknown
1. What e ffo rts have been made during the past year to locate parents?
Form W-8S3. P. 7-75*M20O72(76)
fcv. 7/15/76 CONTINUED.
IV . D. Goal: Continued Care (continued)
2. (b) Whereabouts o f natural fam ily unknown (continued)
2. Have you requested us to register such parents w ith our Law Enforcement and R egistra tion U nit as m issing
persons? If yes, give date and results.
3. Extended fam ily and s ign ifican t others - I f natural fam ily is unable to plan, is unknown, or deceased*describe e ffo rts to
invo lve extended fam ily and/or s ign ifican t others.
V. V is itin g Arrangements
A . V is itin g between ch ild and natural fam ily.
1. What is the current v is itin g plan? Give dates and locations of fam ily and/or s ig n ifica n t o thers ' v is its that have
already taken place. Include partic ipants.
2. Dates and locations of v is its w ith s ib lin gs in care. Include partic ipants.
3. What is the projected plan for continued fam ily and s ib ling v is its?
Form W-853, P. 8-75M-628072(76)
Rev. 7/15/75
CONTINUED.
95a
96a
Excerpts from Testimony (at Trial and by
Deposition in Lieu of Trial)
UNITED STATES DISTRICT COURT
Southern District of New Y ork
Organization of F oster F amilies for Quality
and R eform, et al.,
Plaintiffs,
—against-
James Dumpson, et al.,
Naomi R odriguez, et al.,
Defendants,
Intervenor Defendants.
Deposition of Dr. Shirley Jenkins, taken before
Morene B. Korenman, Notary Public of the State of New
York, held at 622 West 113th Street, New York, New
York, on the 11th day of April, 1975, at 1:45 p.m., pur
suant to notice.
97a
Excerpts from Deposition of Shirley Jenkins
Appearances :
[2]* Marcia R obinson Lowry, E sq.
Attorney for Plaintiff, Foster Parents
New York Civil Liberties Union
84 Fifth Avenue
New York, New York
Louis J. Lefkowitz, E sq.
Attorney General of the State of New York
2 World Trade Center
New York, New York
B y: Stanley L. K antor,
Assistant Attorney General
of Counsel
L ouise Gruner Gans, E sq.
Attorney for Intervenor Defendants
Community Action for Legal Service
335 Broadway
New York, New York
Shirley Jenkins, having been first duly sworn by
Morene B. Korenman, Notary Public of the State of New
York, was examined and testified as follows:
Examination by Mrs. Gans:
• • i
[3] Q. Professor Jenkins, what position do you occupy
at present? A. Professor of Social Research, Columbia
School of Social Work.
* * *
* Figures in brackets refer to each new page of the Stenographic
Transcript.
98a
Excerpts from Deposition of Shirley Jenkins
By Mrs. Gans:
Q. Has your work concerned itself with foster care?
A. Yes, I have been working in relation to foster care,
I would say, for over fifteen years in the research ca
pacity.
Q. Have you published books in the field of foster care?
A. Yes, I have published, I guess, four books and a num
ber of articles in professional journals and I have been
director of three studies.
Q. Could you name the books and the studies? A. Yes.
At the Community Council of Greater New York, I was
director of a study on entry into foster care which re
sulted in a book called Paths to Child Placement: Family
Situations Prior to Foster Care. That is Community
Council -of Greater New York, [4] published in 1966.
I was research consultant on the study for the West
chester Children’s Association, resulting in a publication
in 1964 entitled Total Treatment for Emotionally Dis
turbed Children in Foster Care.
I have been director for ten years of the Longitudinal
Study, Family Welfare Research Program at the Colum
bia University School of Social Work. The first book
from that study is Filial Deprivation and Foster Care,
with Elaine Norman, published by Columbia University
Press in 1972.
The second book from that study is forthcoming, also
from Columbia University Press, called Beyond Place
ment: Mothers View Foster Care. It is in galley form
now, will be published in October 1975.
I also have another book that is called Priorities in
Social Service: Child Welfare in New York City, pub
99a
lished by Praeger, done by the New School for Social
Research and published in 1971.
* * *
[5] Q. Is the research program that you referred to
the same research program out of which Professor Fan-
shel’s studies emerged? A. It is. We studied the same
basic population, that is, children who entered care in
1966 in New York City. He concentrated on what was
happening to the children and I concentrated on what
was happening to the families.
We followed those families up, we interviewed the fami
lies at three points in time.
Excerpts from Deposition of Shirley Jenkins
* # *
[16] Q. Professor Jenkins, on the basis of your study,
what were the reasons— the major reasons for placement
which you found? A. Let me first go back. In the previ
ous study at the Community Council of Greater New
York, we worked out a series of major placement rea
sons and that scheme was followed also in this study,
Filial Deprivation.
By reason children enter care, we are looking in a way,
for the straw that breaks the back. In other words, not
a generalized reason, but the specific fact that made the
difference from the child being at home or into care.
In this study of the families that we interviewed, 22
percent had children entering care because of the mental
illness of the mother, 16 percent child behavior where
the child was emotionally disturbed and needed special
treatment, 14 percent were neglect and abuse cases, 11
percent the physical illness of the mother, 11 percent
the unwillingness of inability of persons other than the
100a
family to continue caring [17] for a child, 9 percent se
vere family dysfunction, 8 percent were unwillingness of
inability of the mother to assume care of the child, 8 per
cent were abandonment or desertion.
* # *
Q. And the category “ unwillingness or inability to as
sume care” ? A. That was primarily unwed mothers who
had babies and wanted some time to establish themselves
and so they put the babies into foster care.
A great many of those then took the babies home. Some
times they returned to school, sometimes they got mar
ried and then they brought the babies back.
* * #
[18] Another category which was mentioned, unwilling
ness or inability to continue care, is one way in which
children come into care, and that is, a child is left in
the care of a relative or a neighbor or a friend and
the mother leaves it, maybe, for a very short time, or
maybe indeterminate, or maybe her plans were changed.
The person with whom the child was left will call the
police and the Welfare Department and say, “ I have this
child. I can’t take care of them any more. I am not
responsible for it. Take the child.”
# * •
There are situations where there will be a mental break
down on the part of the mother, very often related to
severe stress, and a social worker may arrange for a
child to be oared for until the [19] mother can resume
care.
Excerpts from Deposition of Shirley Jenkins
101a
The child behavior situation is very typically one in
which the parents have been told that the child is in need
of residential treatment and that will be a worked-out
arrangement for the child to go into care.
The neglect case is often one in which the court is
involved, in which an objection is raised and the child
is removed from the home.
* * *
[21] There are cases where parents are actually very
much opposed to the children going into care and those
are primarily the cases where they enter by court. They
know about it but they are against it.
[24] Q. Professor Jenkins, in your study Filial De
privation and Foster Care, did you deal with the ques
tion of parents understanding foster care placement [25]
or how they viewed foster care placement?
* * *
A. Yes. We did it in a variety of ways. That is, at
the time children entered care, we sought to establish
how parents felt about agencies and what they thought
about placement and how they saw agencies with regard
to child care.
We followed this up at the two later points. Then,
after children had been in care a while, we asked them
how they felt their children were being cared for. * * *
* # *
[27] A. The findings on the attitude questionnaire were
that mothers and fathers agreed substantially that they
saw agencies as facilitators of care. There were [28]
Excerpts from Deposition of Shirley Jenkins
102a
small groups who said that the agencies were trying to
take away the children, they were angry about that; and
a very small group that said they wouldn’t mind turning
over children to agencies.
The vast majority of the parents said that agencies are
good because they can help you out when you have trou
ble, they can help a child until he behaves better and
is ready to come home; they can do things for a mother
when she is not able to do them herself.
But overwhelmingly it was a temporary thing that they
would help out. * * * parents expected [29] the children
to come home.
Q. Professor Jenkins, the term “ filial deprivation,” could
you explain that term? A. Yes. I coined that term to
mean the experiences and reactions of parents when they
are deprived of their children. In a sense it is a counter
to the very popular concept of maternal deprivation.
Bowlby, who studied children in institutions, developed
the idea that children suffer when they are deprived of
maternal care. No one has looked at what happens to
parents when children are removed. I felt that this
was an important part of the total picture of family
life.
Excerpts from Deposition of Shirley Jenkins
* * *
[30] Q. What did you look to in the parents to measure
what you call “ filial deprivation” ?
Ms. Lowry: Objection as to form.
A. We tried, in a very straightforward way, to ask par
ents how they felt when their children went into care.
We tabulated and analyzed the feelings of mothers and
fathers.
*
103a
[31] A. We found 87 percent of mothers, 90 percent
of fathers saying they felt sad—and I won’t read all the
figures—but the majority of the mothers and fathers felt
worried, nervous, empty and angry.
# # *
* * * this feeling was not a unidimensional thing so
that you could feel sad, empty, angry, guilty, nervous,
all at the same time.
* * *
[39] However, I also studied the feelings of parents
when children were discharged from care. And here we
found a complete reversal. 83 percent—
Just to go back, I questioned 110 mothers as to how
they felt when their children were discharged from care.
83 percent said they were thankful, 68 percent said they
were relieved. So those were strong expressions of feel
ings on discharge, thankfulness and relief.
# * *
[40] Q. You mentioned, Doctor, on direct [41] exam
ination, that the overwhelming proportion of parents that
you interviewed, viewed agencies as facilitators. A. Yes.
Q. Do you think, Doctor, that such an overwhelming
view would persist if it was not anticipated that the child
would be returned, or if there was doubt that the child
would be returned, if you know?
# * #
A. No, I do not think that they would see agencies as
facilitators if they did not see the—because essentially
those questions were on the assumption that the child
Excerpts from Deposition of Shirley Jenkins
104a
would be returned, that that was a temporary interven
tion in time of trouble or until a child behaves better.
So that would not be my hypothesis.
* * *
[42] A. "When we asked parents how they experienced
the agency placement, we had many, many interviews.
From the things that parents said, I would think that
they looked most favorably on those agencies which they
see worked toward the return of the child.
For example, parents have talked about experiences in
agencies and the problems of getting the child back, and
gave a negative view on situations where it is not easy
to have your child returned.
# * #
[54] The problems of children cannot be isolated from
their families, and I don’t think the best interests of chil
dren are in conflict with the families, with their own bio
logical families.
Granted, there are exceptions and times when a state
must intervene. By and large, the best advocate for any
child, in my view, is his or her mother and father.
* # *
[70] Q. What percentage o f the families that you started
out with, 390 families, were you able to follow up with
throughout the entire study?
* # #
[71] A. Yes, the total number, 390, were interviewed at
the first time. The total number that were interviewed
five years later were 160.
Excerpts from Deposition of Shirley JenJcins
*#
105a
Q. Do you have any information about how many chil
dren had returned home at the end of five years, with
regard to 230 families, which is the difference between
the 160 and 390? A. No, that information, I assume
could be gotten from the Fanshel data on discharge. He
focused on discharge questions, we did not. * * *
* * *
[75] We were concerned •with personal reactions. We
decided to do our final analysis just for the 160 mothers
that we had seen in the beginning and later, but we did
reach 257 families.
* * *
Excerpts from Deposition of Eugene A. Weinstein, P.H.D.
[4] E ugene A. W einstein, PH.D., called as a witness,
having been first duly sworn by John DAlessandro, a
Notary Public of the State of New York, was examined
and testified as follows:
Examination by Miss Gans:
Q. What is your name? A. Eugene A. Weinstein, De
partment of Sociology, State University of New York at
Stony Brook.
Q. Dr. Weinstein, what is your position in the Sociology
Department at Stony Brook? A. I am professor of so
ciology and former chairman of the department.
Q. How long have you been at the university? A. Since
1968.
* * #
Q. Was your training also in social psychology? A.
Yes, it was part of the training in sociology.
* * #
lOGa
[5] A. Social psychology is an area o f both psychology
and sociology and people from both disciplines work in
social psychology.
Q. Have you held any fellowships? A. Yes. I was So
cial Science Research Council Fellow and Russell Sage
Foundation, Post-doctorate Fellow.
Q. Have you written any books? A. Yes. I have pub
lished two books, The Self-Image of the Foster Child,*
and another Independent Adoptions, jointly with Helen
Witmer and others.
Q. Have you published any articles? A. I published
about three dozen articles dealing with various topics in
social psychology including social psychology of child
development and foster children.
# * #
[8] Examination by Miss Lowry:
Q. When did you do this research in foster care? A. I
did it in 1955.
Q. Have you had any contact with the foster—any fos
ter care system of foster children subsequent to that? A.
Subsequent to ’55 I had contact with adoptive agencies
and adoptive children, yes.
* * *
[10] Q. Can you describe your study, The Self-Image
of the Foster Child? A. Yes. I was interested in find
ing out the impact that this extremely complex and un
usual situation had on foster children. The impact of
Excerpts from Deposition of Eugene A. Wemstein, P.H.D.
* R-91 Weinstein 3/18/75 Exhibit A.
107a
the situation in which children were confronted by three
sets of adults; their biological parents, the foster parents
and representatives of the social agency, each of them
had responsibility for their care.
I was interested in finding out how children saw them
selves in this kind of complex situation and what relation
ship, how they saw themselves and their experiences in
the placement situation and to how they were developing
in foster placement.
Q. Were the children you studied in foster care for a
year or more? A. Yes. They were all at least five years
of age or older and they all had been in placement for
at least a year or more.
Excerpts from Deposition of Eugene A. Weinstein, P.H.D.
* * *
[11] A. Well, some children identified with their foster—
with their foster parent, some children identified with
their parents, their regular biological parents, depending
upon conditions characterizing the placement situation and
so on.
Q. Could you describe the variables? A. Yes. The
chief variable was whether or not the parents visited
regularly. I f the parents visited regularly, then the chil
dren tended to identify with the parents. When they
did not, when the parents did [12] not stay in the situa
tion, they tended to identify ■with the foster parents—but
it depended upon the visiting parents.
Only in a few cases did it occur that foster children
identified with their foster parents when there was also
some contact being maintained with the natural parents,
regular contact being maintained with the natural parents.
In those cases—in those cases it depended upon the
relative proportion of the child’s life that he spent in
108a
foster care as to whether he would identify with his foster
parents or not.
All of them, I point out that all of the findings that I
am describing here meet statistical criteria for reliable
findings, that is, that it is extremely unlikely that they
could have occurred by chance alone.
# * #
[15] Only in cases where the child spent half of his
time, life in foster care, did foster children identify with
their foster parents when their natural parents remained
in the picture.
Q. In your study, was there a difference in the level of
adjustment or development of the children who identified
with their natural parents and those who didn’t? A. Yes.
Children who identified with their natural parents on the
average were seen as doing much better, as having higher
levels of well-being than children who identified with their
foster parents.
# * *
[17] Q. Is identification, is the way you use the term
“ identification,” is that related to the term “ emotional
bond” ? A. Yes, quite clearly.
It relates to who the child sees as loving him, who the
child feels love for. Yes, very much so.
* * *
[19] Natural parents are important to foster children
when they have formed a prior relationship with them.
I have had over and over and over and over again cases
of children who would defend to me the reasons for their
being in foster care, express their expectation that of
Excerpts from Deposition of Eugene A. Weinstein, P.H.D.
109a
course they would return home—even children who had
had been in placement over half their lives who identified
with their biological parents in the sense of seeing them as
the people or person who they felt was most closely at
tached to them psychologically, emotionally, and [20] they
felt most emotionally attached to themselves.
I f you talk to the children themselves, get any sense
from the children themselves, it emerges very clearly that
this is something very important to them.
Q. On the basis of your study, would you say that the
fact that a child has lived with a particular foster parent
for a year is in any way determinative of the attachment
or identifications of that child with the foster parent or
with its own parent? A. The evidence of my study would
contradict any conclusion that the attachment of a child
to its natural parents is dissolved or replaced by attach
ment to foster parents after a year’s stay in foster care.
* * *
[22] A. My data would imply that the costs to a child
of being pushed to abandon its relationship with its
natural parents or the failure to take advantage of op
portunities to return the child to its natural parents when
the child has an attachment to them would be riskier
than leaving them in a foster home automatically by vir
tue o f the fact that he has spent one year in that home.
Q. On the basis o f your study and experience, what
are the reasons to account for the tendency you found
for children to continue to identify with their biological
parents when in foster care?
Excerpts from Deposition of Eugene A. Weinstein, P.H.D.
*# *
110a
There are two lines of theoretical argument that would
make such findings understandable to u s; one is im
portance in Freudian theory o f early attachments [23]
and the tendency for these to persist, but there is also
another more social psychological as opposed to clinical
reason for this—biological parenthood is of value in
our society. Children in foster care are quite aware of
the fact that they are different and that difference is
something that is devalued. Children come to learn that
being with one’s biological parents is an important aspect
of identity something that they take on as ordinary
members of society. I mean it is a stigma for them.
They often have a visible sign of the stigma, of the
difference between tlieir last name and the last name of
the people with whom they live.
Q. Dr. Weinstein in your book T h e S e l f - I m a g e o f t h e
F o s t e r C h i l d , you speak of the placement situation as
a social system.
Could you please explain what you mean by that? A.
By that I mean that foster care is a complex network of
relationships. The child, the agency, foster parents, bio
logical parents, and that these relationships are inter
connected so that what occurs in one pair in the set has
reverberations for other relationships in the network, what
occurs between the [24] agency and foster parent which
may affect the natural parent, the child. That is essen
tially what I mean by social system as over and against
isolated parent-child relationship or two, competing iso
lated parent-child relationships.
# * #
[27] Q. Doctor, in your opinion, what would be the
consequence of changing the foster care system by giving
Excerpts from Deposition of Eugene A. Weinstein, P.H.D.
111a
foster parents automatic standing to keep—to try to
keep the child after one year? A. The threat of possible
legal action and the possibility o f that, placing a child in
foster care would lead to the loss of one’s child will under
mine one aspect of the ideal or the kind of model foster
care system that I have talked about.
This means that parents o f foster children, most of
whom are poor, will face the possibility of legal action
to recover their children which will put them in a very
difficult kind of situation.
There is this possible consequence.
[28] There is another possible consequence and that
is a consequence for people who become foster parents.
This is the danger that the foster care system would be
undermined and converted into a kind o f a semi-adoption
system as the need for adoptable children, the pressure
for adoptable children grows and grows and grows with
abortion and contraception decreasing the supply of avail
able children.
So that such a practice could become in fact a means
for taking children from poor parents and providing some
o f the relief from pressures for adoptable children, which
is not what the foster care system was intended to pro
vide at all.
It also is likely to lead to an increase in long-term
foster care which is not a good situation for children.
Q. Could you explain why you don’t believe that foster
—long-term foster care is a good situation for children?
* * #
[29] A. Because it perpetuates what is essentially an
ambiguous situation and one in which there is not pro
tection for another land of right, that is, a long-term foster
Excerpts from Deposition of Eugene A. Weinstein, P.H.D.
112a
placement can be terminated at the will of the foster
parents.
This is not the case for natural or easily the case for
natural or adoptive parenthood, so that the ordinary pro
tection of adoption and natural parents are not available
to a child in long-term foster care. It is an ambiguous
situation in which—well, just an ambiguous situation
which is apt to have deleterious consequences.
# * *
[38] Q. Do you have any information how many of
these 61 children had been in more than one foster care
setting of any sort during the time they were in place
ment, including other foster home or any land of con
gregate foster care facility? A. Yes, * * *
Q. When you examined for identification with regard
to whether the child identified with the natural parent
or the foster parent, did you control for the variable of
whether the child had been in multiple foster care set
tings? A. There was no relationship between multiple
foster—being in multiple foster care settings and pattern
o f identification; * * *
# * *
[39] Q. Is it your testimony that if a child had been
in one foster care setting for the entire period of place
ment there was no greater identification with the foster
parent than if the child had been in a number of foster
care settings? A. That is right; if the natural parents
visited.
Q. What about if the natural parents did not visit?
A. Then who the child identified with depended upon the
proportion of his lifetime that he had spent in his current
foster home.
Excerpts from Deposition of Eugene A. Weinstein, P.H.D.
113a
[46] Q. I asked whether there was a emotionally signi
ficant relationship with the foster parents. A. Yes, if the
child had spent a significant portion of his life in the
foster home.
Q. You testified that you thought it would not be good
for children if there were a right in foster parents to a
hearing after a one-year period; is that correct? A.
Yes.
Q. Do you believe that to be true, both in the instances
in which a child’s— a child is to be moved to a foster
home to return to a natural parent and in the instances
in which a child is to be moved from the foster home to
another foster care setting? A. I think these are very
much different situations.
Excerpts from Deposition of Eugene A. Weinstein, P.H.D.
* * *
[48] Q. Dr. Weinstein, do you think that continuity is
important in a child’s life? [50] A. In general, there are
lots of benefits that children get from continuity in many
areas of their lives.
* # #
Would it be important not to interrupt the natural
family relationship if it were in any way avoidable?
# # *
I think it important not to interrupt relationships in
which children formed deep attachments.
# * *
114a
[4] R o b e r t C a t a l a n o , called as a witness, having been
first duly sworn by the Reporter, was examined and tes
tified as follows:
By Mr. Kantor:
* * #
Q. By whom are you employed, Mr. Catalano? A. State
of New York, Department of Social Services.
Q. In what capacity? A. Research Analyst.
# * #
[10] By Mr. Bienstock:
Q. Mr. Catalano, the conclusions reached in this report,
State’s April 14, 1975 Exhibit B, they are your own, are
they? A. I tried not to reach any conclusions; I just
wanted to present what we had there and write a little
analysis of it.
Q. The analysis is your own? A. Pretty much. It all
gets pretty heavily edited.
# * *
[15] By Ms. Gans:
Q. Mr. Catalano, what training do you have ? A. Formal
training?
Mr. Bienstock: Did you go to college?
The Witness: Four years of college; I was a
mathematics major.
By Ms. Gans:
Q. Do you have any other training? A. No, I do not.
Excerpts from Deposition of Robert Catalano
115a
[16] Q. I would like to ask you some questions about
Exhibit B. That is, specifically page 1 of the highlights,
you said abandonment and neglect are the most prominent
conditions in foster care. A. That is right.
Q. With respect to Chart 1* I would like to show you
dependent and neglected. Could you read back the break
down of those cases?
Mr. Bienstock: Objection as to form. Document
speaks for itself.
Excerpts from Deposition of Robert Catalano
* At p. 117a.
116a
Excerpts from Deposition of Robert Catalano
• E x h i b i t B— C h a r t 1
(Opposite)
* From Exhibit B :
H i g h l i g h t s
“ Abandonment and neglect are the most common condi
tions prompting admission to foster care; children admitted
because o f these reasons remain in care longest.”
. . The median length of stay for dependent and neglected
children in foster care at the end of 1973 was 4.38 years.
This compared with 3.63 years for those admitted because
of special problems and 2.93 years for children receiving
“ temporary” care. Among those leaving foster care fastest
are unwed mothers, juvenile delinquents and persons in need
of supervision (P IN S ), with 68, 64 and 48 percent of these
children, respectively, having been in care less than one full
year as of the end of 1973. . . .”
“A comparison of caseloads reveals that children admitted
to foster care for any reason were inclined to remain in care
longer in New York City than children admitted for the same
reason Upstate.”
CHART 1
CHILDREN IN FOSTER CARE UNDER THE SUPERVISION
OF THE NYS BOARD OF SOCIAL WELFARE AN D THE NYS DEPARTMENT OF SOCIAL SERVICES
DECEMBER 31, 1973
NOTE: At the end of 1973 there were, in cddition to those enumerated above, 6,155 delinquent children in the New York Stole Troining
School System supervised by the New York Stole Division for Youth. These children, along with those in institutions providing temporary
or speciol services such os schools for the ceof, convalescent homes ond lemporcry shelters, ore excluded from this report.
117a
118a
Ms. Gans: Since I would like to ask some ques
tions about the category, I think it makes sense to
get it on the record.
Mr. Bienstock: The document is in the record;
that is exactly the point.
By Ms. Gans:
Q. Mr. Catalano, isn’t it a fact that the category “ de
pendent and neglected children” is broken down into cases
adjudicated by the Family Court and those [17] not ad
judicated by the Family Court? A. That is correct.
Q. And in the category “ not adjudicated by the Family
Court” , does that mean there has been any adjudication
of abandonment or neglect?
# # #
The Witness: We are just using the general
terms as opposed to PINS and JD ’s as how we
generally use them and—
By Ms. Gans:
Q. Are you familiar with the category called voluntary
foster care placements? A. I have heard the term.
Q. Does that involve an adjudication, to your knowl
edge? [18] A. No, the term “ voluntary” is not involving
the courts.
Q. All right. Is it true that your reference to abandon
ment and neglect is the common reference, in fact, to
the category dependent and neglected? A. Eight.
Q. Yes, but in fact there have been no adjudications
for 28,153 children out of 34,895 in the category? A.
Excerpts from Deposition of Robert Catalano
119a
Excerpts from Deposition of Robert Catalano
Excerpts from Deposition of Dr. Stella Chess
Among the 34,895 dependent neglected in foster family
homes, 28,153 were not adjudicated.
Q. Do you use the term abandoned, dependent and neg
lected interchangeably1? A. In some cases.
Q. But when you do that, you do not, in fact, know
whether abandonment, neglect or dependency was in
volved? A. In legal terms?
Q. Yes. A. I do not.
• #
560 First Avenue
New York, New York
April 7, 1975
11:30 A.M.
Deposition of D r. Stella Chess, held at the above place
and time, before a Notary Public of the State of New
York.
[2] Dr. Stella Chess, called as a witness, having first
been duly sworn by a Notary Public of the State of New
York, was examined and testified as follows:
Examination by Ms. Lowry:
* * *
[4] Q. Have you written any books or articles in your
area? A. It is just as easy to get a CV, because I have
written a lot. I have written An Introduction to Child
Psychiatry, Psychiatirc Consequences of Congenital Ru
bella, Behavioral Individuality in Early Childhood, Tem
perament and Behavior Disorders, and How to Help Your
Child Get The Most Out of School.
120a
I think that’s the books. And I have been co-editor of
a series called, Annual Progress in Child Development,
Child Psychiatry, of which there have been eight volumes.
# * #
[5] Q. What is your present position? A. Professor of
Child Psychiatry at New York University Medical Center.
* * #
[12] Q. Dr. Chess, do you have any estimate on the
number of children you have evaluated and/or treated
during your professional career? A. I do have the num
ber in a paper I just wrote, because I reviewed all the
ldds.
I think it’s something like 5,000.
# * #
Q. Were any of these children, children who were in
any kind of a foster care setting? A. Yes.
# :jc #
[17] Q. What affect does the existence of blood ties
alone have on the development of the emotional attach
ment? A. There is no automatic relationship between
blood ties and functioning.
Now there may be people who would only give affec
tion to a child to whom they have a blood tie. In that
case, it would have a secondary affect.
As far as the child is concerned, he is responding to
what in fact happens.
# * #
[19] Have you had any experiences observing foster
parents and foster children in which there has been a
significant emotional relationship between the foster par
ent and foster child?
* * #
Excerpts from Deposition of Dr. Stella Chess
121a
Excerpts from Deposition of Dr. Stella Chess
A. Yes.
* * *
[20] Q. So it would be possible in your professional
opinion for there to be, depending on the individual cir
cumstances of the child and the relationship and the
child’s history and all of the variables that you have re
ferred to, it would be possible for there to be a [21]
significant and emotional attachment in a foster parent-
foster child as in a biological parent-biological child? A.
Yes.
And the adverse.
Q. Is it possible for there to be an absence of signifi
cant emotional attachment between a cliild and the child’s
biological parent?
* * #
A. Certainly there can. Certainly there can, if you have
a parent who is psychiatrically ill and incapable of mak
ing an emotional attachment, you would have, you know,
you would have an absence of one, and the other thing
would be if they hadn’t been in touch with each other, I
mean if they just had—if the child hadn’t been in the care
of the biological parent, that person would be a stranger,
there would be no relationship. These would be the [22 ]
main circumstances.
Q. Are you familiar with the term “ psychological par
ent” ? A. Yes.
Q. And can you briefly explain what your understand
ing of that term is, “psychological parent” ? A. The term
refers to there being an attachment between child and
adult taldng care of the child as a parent-child relation
ship, and that this has been developed over a period of
time, all the things that I discussed before, you know, in
122a
terms of development of ties having occurred between that
particular child and that particular adult.
Q. In your opinion, can this relationship develop in the
absence of a blood relationship? A. Yes.
* * *
[23] Q. Would the passage of time be likely to
strengthen this relationship?
* * *
A. I f it is a good one, yes.
Again, it depends on the nature of the relationship. It
could be the opposite.
Q. What effect, in your professional opinion, would it
be likely to have on a child to remove him from adults
with whom he has formed a psychological relationship, a
positive psychological relationship? A. We are talking
about immediate effect or long-term effect?
Q. Both. A. Both. The immediate effect would be dis
tress, I mean, if you take a child away from the people
who are his bonds, you would [24] have immediately dis
tress.
The long-term effect is where all the things I said before
also pertain. It would depend on what was the nature
of the circumstance to which the child went, whether this
were the first such separation or not, that is, if the child
were repeatedly taken from the people to whom he had
developed bonds and removed and then back again.
* * #
I would tend to say that there ought to be a very good
reason for doing it before such a thing is done. Such a
thing should not be done lightly and basically a child who
Excerpts from Deposition of Dr. Stella Chess
123a
is a normal, healthy child and had proven himself capable
of forming attachments to one set of parents might in
the long run be able to develop equally strong attach
ments to another set of parents as long as this hadn’t
been a repeated thing.
On the other hand, it could be utter disaster depending
on the nature of the new [25] living set of circumstances
and whether the new parents’ handling was consonant
with the child’s needs or not, or whether this was one in
a series of removals in which the impermanence was more
dominant than the question of the details of what went
on between the child and parent.
Q. What impact would a series of removals be likely
to have on the child’s development? A. Again the details
do indeed depend on the age of the child but a series of
removals are highly likely to interfere with the child’s
ability to learn a degree of predictability, to develop a
sense of expectation of what behaviors are approved of
and what behaviors are disapproved of, to learn a sense
of security of expecting that if he behaves in a certain
way he will get positive feedback in a sense.
Repeated removal of a child from one situation to an
other, even if they are basically good situations, you know,
other than the fact that they are different, if they are
repeated they are highly likely to deprive the child of
an ability to form close relationships * * *
* * *
[26] Ms. Gans: * * * Neutral foster homes are
not an issue in this case.
Ms. Lowry:
Q. In terms of a child’s development, do you have any
opinion on the use of so-called neutral foster homes to
Excerpts from Deposition of Dr. Stella CUess
124a
which a child may be removed after he has formed a
strong attachment with foster parents?
* * *
[27] Q. Do you have an opinion of the effect on the
child of removing him from a foster home in which he
has formed strong emotional ties to a neutral foster home ?
A. I don’t think it’s a good idea. I f a child is going to
be removed, it means into a void, an emotional void.
It is equivalent to somehow communicating to him that
emotional ties are not proper, and that’s antithetic to
what we want children to learn.
* * *
[28] Q. Do you think chddren are capable of forming
judgments about where they want to live?
# * #
A. Some children are and some aren’t.
Q. With regard to a child who is capable of forming,
in your opinion, who is capable of forming a judgment
as to where they want to live, how important is it to
consider the child’s opinion in a decision with regard to
where the child should live ?
* * *
A. I would listen very carefully but I wouldn’t auto
matically act on it. I mean, again it is a situation where
you have to evaluate the total circumstances and the
child cannot be expected to be aware of the totality of
the circumstances, so that his [29] reaction is bound to
Excerpts from Deposition of Dr. Stella Chess
125a
be on the basis of only that segment of experience that
he has been through.
* * *
Q. Do you have an opinion as to whether a decision to
remove the child from a foster home in which the child
has been living should be reviewed prior to the actual
removal of the child or subsequent to the removal of the
child with regard to the effect of such a move on the
child? A. It seems to me that it should be reviewed
beforehand because any removal should be carefully
thought out and be to a new place which is going to be
the permanent place, if at all possible.
« * *
[31] Q. Would the initial removal, in your opinion, be
likely to cause some damage to the child even if the child
were later returned ? A. It has a probability. I wouldn’t,
you know, in some cases it might be made up, but it has
enough of a probability, so I don’t think it should be done
lightly.
Q. Based on a child’s psychological development, how
important in your opinion is it to have the decision to
remove a child from a foster home carefully made? A.
Very important. Very important. It [32] should be a
primary tenet of our principal people who have children’s
lives in their responsibility.
* * *
Ms. Gans: * * * The word “ carefully” is vague.
Q. Are you familiar with the book, Beyond the Best
Interests of the Child? A. I just read it.
* * *
Excerpts from Deposition of Dr. Stella Chess
126a
Q. Which, if any, of the conclusions, do you agree with?
A. I agree with the importance given to the psychological
parent as a factor to be taken into account.
You want me just to stick to the ones I agree with,
not the disagreements, at this moment?
Q. Yes. A. I agree with the conclusions that children
should not be repeatedly removed from one place to an
other place to another place.
I think those are the two main conclusions [33] that I
would agree with. * * *
Q. On what do you base your agreement with these
conclusions? A. On both the theory and the observation
that children do develop their sense of identity, their
sense of conscience, their sense of ability to develop
meaningful relationships by consistent experiences with
the same group of people, small group of people, and in
that sense what they discuss there is in agreement with
what I have both learned and seen to be the case.
Q. Generally what conclusions in the book do you dis
agree with? A. I think that it is a too unidimensional
statement to say whoever is at any given moment the
child’s psychological parent should remain so. It doesn’t
give credence to all the other factors that might be in
volved in one given child’s case, and I think that there
may be situations when it is simply not the best thing
for the child.
# * *
[34] There is also more minor disagreement, but I
suppose the part that there isn’t enough weight given in
the discussion to the variation in children’s adaptive capa
cities.
* * *
Excerpts from Deposition of Dr. Stella Chess
127a
[40] Doctor, is it possible for a child to simultaneously
have a psychological parent-child relationship with more
than one set of [41] parents?
* * *
A. * * * It is possible for children to develop strong psy
chological ties to, I think, more than one set of parents,
depending on a whole set of circumstances.
Q. What circumstances would it depend upon? A. On
whether each one reinforced the other, each set of parents
reinforced the tie with the other.
* * *
I have seen this where it has happened where the foster
parents continually spoke of, in this case it was the
mother, with great [42] affection and made sure that the
child didn’t feel that the mother had abandoned it. * * *
# * *
[59] A. Initial decisions can be wrong because they can
fail to take into account certain, you know, totality of
facts which sometimes come out in later discussion.
I would say again that I don’t really think it is right to
dislodge a child until it is very certain that the place to
which he is to go is to be the place that is to be per
manent.
# 5j« *
[64] Ms. Gems:
Q. * * * could you predict just from the fact of a child
and the fact that foster parents are licensed to be foster
parents—
* * *
Excerpts from Deposition of Dr. SteUa Chess
128a
Q. —that an emotional tie will develop? A. No, that
wouldn’t be enough.
Q. Could you predict if a child is in a foster home for
a year, again discounting all the other factors, that you
could predict [65] that there is an emotional tie between
that child and the foster parent? A. You say discounting
all the emotional factors?
Q. That’s right.
* * *
A. I f you are discounting that, then I would say a year
should certainly be enough to predictably develop an emo
tional tie, but, as I said, there could be exceptions.
There could be children for whom, because of their pre
vious experience, it would take more than a year for the
emotional tie really to be solidified.
* * *
[66] Q. Could you predict that solely on the basis of
the fact that the child has been in that foster home for a
year that that is the more important relationship than the
child’s relationship with its parents ?
# * *
A. No.
# * *
Q. In general, would you worry about [67] children
going home to their family after a year?
Ms. Lowry: The witness has already testified
she can’t answer that question.
A. It would depend on what home was like, how perma
nent this was to be, whether the factors that led to the
Excerpts from Deposition of Dr. Stella Chess
129a
original placement are likely to recur, whether there was
a positive relationship between the child and the parent
before the, you know.
Excerpts from Deposition of Dr Stella Chess
* * #
[72] Q. I f a child is in foster care, understanding, as
you said earlier, that it is a temporary situation and that
he will go home, is prolonging its return a disruption of
expectations ?
# * #
A. If this is a child whose tie to his home has been main
tained and the parents want him back and he wants to
go back, certainly under these circumstances, to prolong
the separation would make it hard on the child.
* * *
Q. In this lawsuit, I believe it was Dr. Goldstein who
testified that, correct me if I am wrong, in a child under
six years o f age, [73] a separation from its own parents
of six months was enough to undermine the child’s own
relationship with its own parents and replace that with
an attachment to the foster parents.
* * #
[74] A. No, I don’t think one could automatically predict
that this would be the case.
Q. In your opinion, can a child who has established an
attachment to his own parents, assuming there is con
tinued contact, maintain the relationship with its own par
ents, maintain the attachment to its own parents for more
than eighteen months in foster care?
# * #
130a
[75] A. You don’t duplicate in a visit the routines of what
goes on in life, but the ties certainly can be maintained.
* * *
[76] Q. Is the question o f the effect of separation on a
child a matter on which child psychiatrists agree or scien
tists agree, or is this a subject o f controversy?
# * *
A. * * * There is a considerable degree of controversy on
that.
# * *
[84] A. * * * [Y ]ou can’t just say the word “ separation”
and immediately know that without having defined all the
rest of the circumstances that you are creating havoc.
# * *
[85] Q. Is it also possible for a child not to have a mean
ingful relationship with a foster parent?
# * *
A. A perfectly normal child might go into a foster home
and, for reasons of the way in which the foster parent
cared for the child, refrained from making an emotional
bond, the child might very well, might not form an emo
tional bond, and it might be a bad foster (86) home, in
which case the child might form a rather negative atti
tude and not form an emotional bond.
# * #
Excerpts from Deposition of Dr. Stella Chess
Appearances
84 Fifth Avenue
New York, New York
April 9, 1975,
3:00 P.M.
E xamination of the Defendants, by Mary J ane B ren
nan, taken pursuant to Notice dated March 27, 1975, be-
for a notary public o f the State of New York.
[2] Appearances:
New Y ork C ivil L iberties Union
Attorneys for Plaintiff Foster Parents,
84 Fifth Avenue,
New York, New York 10011
B y: P eter B ienstock, Staff Counsel.
County A ttorney of Nassau County,
Nassau County Executive Building,
West Street,
Mineola, New York 11501
B y: Jack Olchin,
Deputy County Attorney
Louis J. Lefkowitz, E sq.,
Attorney General
2 World Trade Center,
New York, New York 10049
B y: Stanley K antor,
Assistant Attorney General
Marttie L ouis T hompson, E sq.,
Community Action for Legal Services, Inc.,
335 Broadway,
New York, New York 10013
B y: Ms. L ouise Gruner Gans, of Counsel.
132a
Mary Jane B rennan, having been duly sworn by a no
tary public of the State of New York, testified as follows:
Direct examination by Mr. Bienstock:
# * #
[4] Q. Within your agency, who makes the decisions to
remove children from particular foster homes?
* # #
[5] A. * * * So, there would be at least two levels of ad
ministration involved in that. I f the child were to be re
moved from a foster home and the foster parents were not
in agreement with this, then they would be given every
consideration according to the state guidelines which we
observe and there would be a hearing at their request and
at the hearing the assistant director would preside.
# * #
[6] Q. What are the minimum educational require
ments for the first level, the case worker? A. Bachelor’s
Degree from an accredited college.
Q. Is there any particular subject in which the Bache
lors Degree is required to be? A. I do not believe so.
# * #
[11] Q. I would like to ask you some questions about the
decision to remove children from particular foster homes.
What standards govern the decision to remove a child
from a particular foster home?
# # #
A. Well, there are a number of factors that are taken
into consideration. First and foremost, most of the chil
dren who are in placement in our department under the
auspices of our department are placed with us volun
tarily by their parents. We operate under the laws of
Mary Jane Brennan—for Plaintiff Foster Parents—Direct
133a
New York City and the mandates of the State Depart
ment of Social Services. Therefore, if a child has been
voluntarily placed and if the parent is requesting that
place for the return of the child to him or her, to them,
unless there was strong compelling evidence that that child
should not be returned, we would work with the parent and
the foster parent and the child towards the return of the
child home.
[12] * * * then our goal will be to return that child to
his own family just as quickly and efficiently and sensi
tively as possible and the parent will understand this, the
foster parent and the child.
* * #
Q. When a cliild is moved from a particular foster home
to another foster home or to an institution, what are the
standards that govern that decision? A. Well, there is
often one very simple one and that is the foster parents
insistence that [13] the child leave the foster home. That
is one of the major reasons why children go from one fos
ter home to another.
Another reason can be if the child is having—not having
his needs properly met in the foster home, if he is not
developing properly, if he is not being fed properly, if
there is difficulty or problems, that sort of thing.
Another would be if the child has been harmed or
abused, there are complaint problems in relation to that.
Q. In the foster home? A. In the foster home, right.
* * *
[17] Q. When your agency decides to remove a child
from a particular foster home, how is that decision com
municated to the foster parent? A. It is usually commu
nicated to the foster parent verbally by the worker for
Mary Jane Brennan—for Plaintiff Foster Parents—Direct
134a
the child who is visiting in their home on a regular basis.
In other words, in terms of our goals to effect permanent
plans for all of these children, the foster parents are very
much a part and a partner in this.
Q. Is the decision usually also communicated to the
foster parent in writing? A. In conformance and in com
pliance with the state’s mandates, they are. * * *
* jfc *
[19] Q. Are the reasons for the removal of the child
from a particular foster home communicated to the par
ents in writing? A. To the foster parents?
Q. Yes. A. I do not believe so. They certainly would
have been discussed, however, * * *
# * «
[20] Q. I f the foster parents do not agree with your
agency’s decision to remove the child, what recourse do
they have? A. They have the recourse that is provided
in the mandates of the law and as we see from this, the
form, the notice of removal or agreement to remove child
form, they can indicate in writing that they agree to it
and they waive their right to notification or that they
have read it and they request a conference with a social
service official prior to the proposed [21] removal.
* * #
[23] A. Of my knowledge, the assistant director related to
the situation is the person with whom the foster parents
have the conference. I f the foster parents request that
the supervisor and the worker be present or that they
not be present, their wishes are honored.
* * #
Mary Jane Brennan—for Plaintiff Foster Parents—Direct
135a
[29] Q. Are they told prior to the conference, Miss
Brennan, on what basis the assistant director who makes
the decision after the conference will make the decision?
A. I don’t really know if I can answer that. That the
hearing is one of the steps in this and the purpose of the
hearing is to hear what the foster parent has to say and
any information that is developed there that maybe is
new or different or whatever is what would be taken into
consideration.
# * *
[30] A. The functions of the conference is to give the
foster parents every opportunity to present their views
and reasons as to why they disagree with the agency’s de
cision to remove the child and I would like to add also
since it would not come to that point, if both the foster
parents and the agency were in agreement, it would be
a further opportunity for the department to interpret to
the foster parents why the department had made that
plan.
Q. By interpret, do you also mean explain? A. Yes.
I think you can say that.
* * •
[31] Q. I f the person holding the conference—very o f
ten isn’t it true that the person holding the conference is
the person who has made the decision?
* * #
A. The person holding the conference has most definitely
participated in the decision.
# * *
Mary Jane Brennan—for Plaintiff Foster Parents—Direct
136a
[32] Q. It is not an unusual practice for a supervisor
to discuss the facts of a particular case with an assistant
director prior to the conference, is it?
* # *
A. It is not.
[35] Q. What is your agency practice with regard to
permitting foster parents to view agency records prior to
the conference? A. It is not our practice to have anyone
review our case records unless they have been subpoenaed
or unless they should fall under the Freedom of Informa
tion Act.
# # #
[36] Q. Where a decision is made in whole or in part
based on agency records, the answer would be the same?
They are still not permitted to view the agency records;
is that right? A. I would suspect so.
Q. * * * Could you describe what goes on at a confer
ence, the procedure, who starts, who explains first, who
answers, in as much detail as you can? A. I really
couldn’t because I have never been present during one of
those conferences.
Mr. Kantor: On the basis of that answer I move
to strike the entire deposition that occurred after
the individual was identified as Bureau Chief of
the Children’s Bureau of the Nassau County De
partment of Social Services.
Ms. Gans: I join in the objection.
# * #
[39] Q. Are the standards for the decision both the
same before the conference and after the conference? A.
Yes.
Mary Jane Brennan—for Plaintiff Foster Parents—Direct
137a
Q. Are those standards in writing anywhere? A. I
would think not.
# * *
[41] Q. Are the reasons for the decision stated in writ
ing when the decision is communicated in writing? A. I
do not believe the reasons for the decision are listed.
Mr. Kantor: Again I move to strike so much of
the answer as it is based on belief.
Ms. Gans: I join in the objection.
* * *
Q. How long have you been in your present position?
A. About nine months.
Mary Jane Brennan—for Plaintiff Foster Parents—Direct
* * #
[88] A. Does the worker use the record in making a deci
sion to remove a child?
Q. That’s right. A. The decision to remove a child is
not made by the worker alone, number one. A worker’s
activities regarding a case are recorded in the case record.
A worker should review the record. The supervisor re
views the record, the assistant directors review the record
in addition to verbal exchanges among those parties.
# * *
[89] Q. Do you sometimes return a child home where
there has been no contact between the mother and child?
A. I think that would be very unlikely that there would
have been no contact. As I mentioned earlier, we make
a very zealous effort to involve all parties to this in the
implementation of this plan.
* * *
138a
Plaintiff’s Exhibit 1
C h i l d r e n ’ s B u r e a u
County Seat Drive, Mineola, New York 11501
Charles A. Langdon
Executive Director
Mary Jane Brennan
Administrative Director
A g r e e m e n t t o B e m o v e C h i l d f r o m F o s t e r F a m i l y C a r e
June 26, 1974
Name of Child: Cheryl Wallace
Date of Birth: 9/14/62
Name of Foster Parents: George and Dorothy Lhotan
Address: 10 Vassar Lane, Iiicksville, N. Y.
In accordance with the New York State Department of
Social Services (Regulation 450,14), we wish to notify
you of the Agency decision to remove Cheryl Wallace, a
foster child, from your home. This will serve as the 10-
day notification o f removal on or after July 9, 1974.
I f you are not in agreement with this decision, you
have the right to request a conference with a Social Serv
ices official to have the proposed removal reviewed. Your
request for such conference must be made within five days
of receipt of this notice.
* * *
139a
Plaintiff’s Exhibit 1
I have read the above and object to the removal and
request a conference with a Social Services official prior
to proposed removal.
Witness
Foster Father
Foster Mother
• * •
140a
Appearances
STATE OF NEW YORK
Court of Claims [sic]
Organization of Foster Families for
Equality and Reform, et al.,
Plaintiffs
— against—
Jambs E. D umpson, et al.,
and
Defendants
Naomi R odriguez, et al.,
Intervenor-Defendants
-----------------------*-----------------------
Examination Before Trial of Peter Mullany, held pur
suant to Order, in the offices of the New York State De
partment of Social Services, 1450 Western Avenue, Al
bany, New York, commencing at 10:00 A.M. on Monday,
April 14, 1975, before Deborah M. Sawitzki, Court Re
porter in and for the State Of New York.
# * #
141a
[4] Peter Mullany E sq. called as a 'witness, first hav
ing been duly sworn by the Reporter, was examined and
testified as follows:
By Mr. Kantor:
* * #
Q. Mr. Mullany, would you tell me by whom you are
employed? A. The New York State Department of Social
Services.
Examination Before Trial of Peter Mullany
* * *
Q. And in what capacity are you employed? A. Assist
ant Counsel.
* * #
Q. Can you tell me what your duties are as Assistant
Counsel? A. My duties are to generally supervise the
Bureau of Administrative Adjudication which is generally
[5] responsible for the scheduling, conducting of fair
hearings, and issuance of decision Statewide.
Q. Would those fair hearings that you are responsible
for scheduling and conducting include hearings under Sec
tion 400 of the Social Services Law? A. They do.
Q. And are you familiar generally with the issues and
procedures involved in adjudicating Section 400 fair hear
ings? A. I am.
# * *
[7] Q. Why do you break out the Section 400 hearings
and treat them differently? A. Number one, they tend to
be a great deal longer than a regular public assistance
hearing. They tend to involve, obviously, different issues
than you are going to find in a public assistance fair
142a
hearing. They require a more specific expertise than the
general public assistance fair hearing does and, for those
reasons basically, we handle [8] them separately.
Q. I f you know, can you tell me on the average how
long a Section 400 fair hearing runs? A. I would have
to say, to the best of my knowledge, there is no real
average. They tend to either be very, very short or very,
very long, and the reason for the difference, I think, is
depending at what stage of the case the hearing is held at.
For example, if it is a case—and we have them—where
from the time the hearing has been requested or even
prior to that time, until it has been scheduled a Family
Court may intervene and direct placement of the child;
for example, return the child to the natural parent. In
those types of cases, the hearing itself would not tend to
be as long as when there is still a dispute. I could not
give you an average elapsed time.
Q. In those instances where there is a dispute, could
you give us an average of the length of time the hearing
takes? A. The minimum would be one day; very likely
more than one day.
[9] Q. Within the past 12 months, if you know, how
many Section 400 hearings have been conducted by your
bureau ?
Examination Before Trial of Peter Mullany
* * *
Q. To the best of your knowledge? A. This is an esti
mate: It would be somewhere in the neighborhood from
12 and 20 requested.
Q. And how many, to the best of your knowledge or
estimate, are actually held and go to adjudication? A. I
would say probably— again this is an estimate— 60 to 70
percent of the 12 to 20 estimate.
143a
Q. So, I take it, then, it would be somewhere between
seven to ten? A. Somewhere in that neighborhood, as a
very small number of the total number of cases we have.
* • •
Examination Before Trial of Peter Mvllany
[15] By Mr. BienstocJc:
Q. Could you tell us, based on your best estimate if you
have one, how long a period of time elapses between the
request for a fair hearing and the final determination in
the 400 fair hearings? A. Limited to 400 fair hearings.
That is a very difficult question to answer, and I cannot
answer it. There are about six reasons I cannot answer
it; one is cases are adjourned. They are adjourned at the
request of either party for anywhere from a week to a
month, which is going to elongate the period.
Secondly, depending upon the type of hearing involved
and its length, obviously, the amount of time the hearing
officer is going to be required to prepare his report is go
ing to vary. A four-day hearing with numerous exhibits
and documents and necessity of a transcript, et cetera, is
going to require the passage of time. I do not know in
any given [16) situation what the average is from the date
of request to the date of disposition; also, that our ability
to hold and issue decisions in this field is colored by the
fact we are required to hold the remaining 35-, 36,000
hearings annually within time frames as established by
Federal and State regulation and Federal courts.
Q. Generally, is the decision time, meaning time from
request to decision in foster care hearings longer or
shorter than in public assistance hearings, if you know?
A. It is, on an average it is probably longer.
# # *
144a
[18] Q. What types of specific issues, based on your
fair hearings and the fair hearings that Mr. Buckley has
conducted that you have reviewed, are to be resolved or
have been resolved at these fair hearings A. Well, you
know, it is awfully hard to pinpoint an actual factual is
sue. Again you are talking about a series of facts which
do or do not result in a determination of the agency, a
justifiable determination to remove a child. It is not gen
erally one fact. In one case it can be the presence in the
family of, you know, another child, a natural child whose
interest and whose activities are adversely affecting the
foster child. In another case it could be a question of
excessive utilization of corporal punishment on a foster
child which would justify removal; then, a lot of cases
are cases where the actual complaint of the foster parent
is not that the child is being removed but that the foster
parent has taken such an interest in the child that what
he is actually seeking is an adoption preference when the
agency does [19] come in and determine to remove the
child for adoption by someone else.
The issues generally are not, except for the possible ex
ception of corporal punishment situations, is generally not
a question of dispute; in fact, most of the cases, for ex
ample’, involve cases where the agency has determined to
remove the child and return the child to its natural parent
who voluntarily had the child placed. In that case, the
foster parents are not objecting so much to the removal on
the basis of the child going to his natural parent, they are
objecting on the basis that they have acquired an affection
and love for the child which they feel should justify them
in retaining the child. It is not a contest.
# # #
Examination Before Trial of Peter Mullany
145a
Examination Before Trial of Peter Mullany
[20] By Ms. Gans:
Q. I believe you testified that sometimes you have a re
quest for a 400 hearing and then there is an intervening
court order concerning the child. A. It has happened on
occasion.
Q. At that point you proceed with the hearing? A. We
proceed with the hearing.
Q. And what do you see as your authority under those
circumstances? A. The authority for the hearing is Sec
tion 400 of the Social Services Law which gives to foster
parents the right to a hearing.
[21] Q. I see. A. We would generally have no way of
knowing until the hearing itself what might have trans
pired in the interim.
Q. Let us say you do know; do you still feel you have
authority to go ahead with the healing? A. The question,
“ you”—
Q. “You” as the Assistant Counsel? A. You may have
authority to go ahead with the hearing, you may not have
authority to be a bona fide remedy for the foster parents.
We have no way of knowing, when the foster parents, re
quest the hearing, in many cases why they are asking for
it, although they are entitled to have a hearing when a
child is removed. Foster parents, like everyone else, they
do not frame the exact issue that clearly.
Q. I believe you testified that the Commissioner does
not have the power to reverse a Family Court decision or
a Supreme Court decision. A. Basically, that is correct.
Q. Does that mean that when there is such a decision,
the hearing is an exercise, academic exercise? [22] A.
The hearing decision, the ones I have seen in the past,
where something has happened in the interim, whether it
is a placement of some other sort, judicial placement of
146a
some other sort, the hearing has resulted in, basically,
there being no issue to be decided at that point in time
any longer by the fair hearing procedure.
Q. You testified that a number of the fair hearings in
volved the child being returned to the home; is that cor
rect? A. That is right.
Q. And you also testified that it is not your practice to
notify the natural parent? A. That is correct.
* * *
[24] Q. There is no provision in the law, or is there,
which gives a hearing officer the power to stay a fair hear
ing pending, stay a removal of a child from foster care
pending a determination of the fair hearing? A. No.
Q. You testified that at times the removal is stayed
pending a fair hearing decision, but that is on consent of
the agency, isn’t it? A. Generally not only on consent
of the agency but it is initiated by the agency.
Q. So that if the agency does not wish to stay the re
moval pending a fair hearing determination, there is noth
ing that the hearing officer can do about that? A. That
is my understanding of the law.
Examination Before Trial of Peter Mullany
147a
Curriculum V ita
David F akshel
Intervenors’ Defendants’ Exhibit 2
Address:
537 Cumberland Avenue
Teaneck, New Jersey 07666
Telephone: (201) 836-9280
Current Employment:
Professor
Columbia University
School of Social Work
622 West 113 Street
New York, New York 10025
Telephone: (212) 280-3250
Personal Bata:
Born July 29, 1923, New York, N. Y.
Married, two children
Social Security No. 068-14-1880
Educational Backgroimd:
City College of New York, 1947, B.S., Sociology
Columbia University School of Social Work, 1948, M.S.
Social Work
148a
Columbia University, Department of Sociology, 1948-
1955, Completed course requirements for doctoral pro
gram (60 credits)
Columbia University School of Social Work, 1960, D.S.
W., Social Work Research.
Experience:
1942-1945 Navigator, European Theater, Army Air
Force
1945-1948 Part-time experience as group worker in set
tlement houses, community centers;
Graduate student field placement in New
York City Welfare Dept, and Veterans Ad
ministration (1 academic year each);
1948-1952 Caseworker, Jewish Child Care Association
of New York.
Duties: Worker in residential treatment cen
ter and intake department worker in foster
care program.
1952-1955 Research Associate, Studies in Gerontology,
Cornell University Medical College, New
York City.
Duties: Participated in design and execution
of large-scale field survey of aged persons in
New York City. Subsequently helped design
and was administrator of an interdisciplinary
counseling service for the aged in East Har
lem.
Intervenors’ Defendants’ Exhibit 2
149a
1955-1958 Research Director, Family and Children’s
Service, Pittsburgh, Pennsylvania
Duties: Directed studies related to agency
practice including investigation of case
workers’ perceptions of their clients, Negro
couples applying for adoption, families pro
viding foster care for children and couples
having marital problems.
1958-1963 Director of Research, Child "Welfare League
of America, New York, New York.
Duties: In charge of program involving staff
of six to eight full or part-time persons. Ad
ministrative supervision of research projects
and direct work as principal investigator in
adoption studies consulted with child welfare
agencies in various parts of the country on
research problems.
1962-
Present Faculty, Columbia University School of So
cial Work (Associate Professor, 1962-1965,
Professor, 1965- ) ; Director, Child Wel
fare Research Program (1964-present).
Duties: Time divided between research teach
ing (courses on research methods in Master’s
and doctoral program, doctoral dissertation
supervision) and directing large-scale pro
gram of research on foster care of children
in New York City (1964-present).
Intervenors’ Defendants’ Exhibit 2
150a
Intervenors’ Defendants’ Exhibit 2
Dates
1952-1955
Source
of Support
Russell Sage
Foundation
1955-1958 Heinz Foun
dation, Pitts
burgh, Pa.
1957-1960 Field Founda
tion of Chicago
and New York
Research Projects:
Name
1. Studies in Geron
tology (Cornell
University Med
ical College)
2. Studies in Agency
Practice (Family
and Children’s
Service, Pitts
burgh, Pa.)
3. Studies of Foster
Parents (Family
and Children’s
Service, Pitts
burgh, Pa.)
4. Disturbed Chil
dren in Psychiat
ric Settings
(Child Welfare
League of
America)
5. A Follow-Up
Study of Adopted
Families (Child
Welfare League
of America)
1963-1965 American
Child
Guidance
Foundation
Selected
Publications
Five Hundred
Over Sixty (book)
A Study in Negro
Adoption (mono
graph) ;
Caseworkers’
Perceptions of
Their Clients
(book)
Foster Parenthood
(book)
Behavioral Char
acteristics of
Children Known
to Psychiatric
Out-Patient Clinics
(monograph)
How They Fared
in Adoption
(book)
1962-1966 Mildred E.
Bobb Fund of
New York
151a
Intervenors’ Defendants’ Exhibit 2
Name
Source
Dates of Support
Selected
Publications
6. The Adoption of
Indian Children
by Caucasian
Families (Child
Welfare League
of America)
1962-1970 Child Welfare Far From the
Research and Reservation
Demonstration (book)
Grants Pro
gram, HEW
7. Study of Ad- 1965-
vanced Casework present
Practice (Arthur
Lehman Counsel
ing Service, New
York City)
NIMH Playback: A Mar
riage in Jeopardy
Examined (book);
Therapeutic Dis
course (book in
preparation)
8. Child Welfare 1965-
Research Pro- present
gram (Columbia
University School
of Social Work)
Child Welfare
Research and
Demonstration
Grants Pro
gram, HEW
Children in Foster
Care (book in
preparation);
Dollars and Sense
in the Foster Care
of Children
(monograph)
Selected Other P rofessional A ctivities :
1. Honorary Editor-in-Chief, Journal of Education for
Social Work, Council on Social Work Education (1966-
1972).
2. Chairman, Research Committee, Family Service Asso
ciation of America (1966-present); member (1958-
present).
152a
3. Member, Research Committee, Child Welfare League
of America (1968-present).
4. Chairman, Advisory Board, Abstracts for Social Work
ers, National Association of Social Workers (1965-
1969).
5. Chairman, Publications Committee, National Associa
tion of Social Workers (1971-present).
6. Chairman, Divisional Committee, National Conference
on Social Welfare (1971-1972).
7. Member, Advisory Board, Booz, Allen Public Adminis
trative Services, Social Services Effectiveness Study
(for HEW ) (1971-1972).
8. Member, Interagency Council on Child Welfare, New
York City (Committee on Management Information
System), (1971-present).
9. Member, Child and Family Development Research Re
view Committee, Office of Child Development, HEW
(1971-present).
Intervenors’ Defendants’ Exhibit 2
P ublications
Fanshel, David; Kutner, Bernard; and Langner, T. “Ag
ing: A Cross-Sectional Survey and Action Program.”
Journal of Gerontology, Vol. 9, No. 2 (April, 1954),
pp. 205-209.
Kutner, Bernard; Fanshel, David; Togo, A .; and Langner,
T. Five Hundred Over Sixty. New York: Russell
Sage Foundation, 1956 (345 pp.).
153a
Fanshel, David. A Study in Negro Adoption. New York:
Child Welfare League of America, 1957 (108 pp.).
. “ A Study of Caseworkers’ Perceptions of Their
Clients.” Social Caseworh (December, 1958), pp. 543-
551.
An Overview of One Agency’s Caseworh Opera
tion. Pittsburgh, Pa.: Family and Children’s Serv
ice, 1958. (Distributed by Family Service Association
of America; 318 pp.)
Meyer, Henry J .; Borgatta, Edgar F .; and Fanshel, David.
“Unwed Mothers’ Decisions about Their Babies.”
Child Welfare (February, 1959), pp. 1-6.
Borgatta, Edgar F .; Fanshel, David; and Meyer, Henry J.
Social Workers’ Perceptions of Clients. New York:
Bussell Sage Foundation, 1960 (92 pp.).
Fanshel, David. “ Toward More Understanding of Foster
Parents.” DSW dissertation, New York School of
Social Work, Columbia University, 1960.
. “ Studying the Bole Performance of Foster Par
ents.” Social Work (January, 1961), pp. 74-51.
. “ Specializations Within the Foster Parent Bole:
A Besearch Beport.” Child Welfare (March-April,
1961), pp. 17-21, 19-23.
. “ Approaches to Measuring Adjustment in Adop
tive Parents.” Quantitative Approaches to Parent
Selection in Child Welfare. New York: Child Wel
fare League of America, 1962, pp. 18-40.
Intervenors’ Defendants’ Exhibit 2
154a
, (ed.). Research in Social Welfare Administration:
Its Contributions and Problems. (New York: Na
tional Association of Social Workers (July, 1962;
127 pp.).
, and Maas, Henry S. “ Factorial Dimensions of
Characteristics of Children in Placement and Their
Families.” Child Development (March, 1962), pp.
123-144.
“Research in Child Welfare: A Critical Analy
sis.” Child Welfare (December, 1962), pp. 484-507.
Meyer, Henry J .; Borgatta, Edgar F .; and Fanshel, David.
“ A Study of the Casework Interview Process.” Ge
netic Psychology Monographs (1964), pp. 247-295.
Fanshel, David. “Administrative Issues in the Organiza
tion of Research Activities.” Social Casework (De
cember, 1963), pp. 563-568.
; Hylton, Lydia F .; and Borgatta, Edgar F. “A
Study of the Behavior Disorders of Children in Resi
dential Treatment Centers. Journal of Psychological
Studies (1963), pp. 1-23.
. “An Upsurge of Interest in Adoption.” Children
(September-October, 1964), pp. 193-196.
. Foster Parenthood: A Role Analysis. Minne
apolis, Min.: University of Minnesota Press, 1966
(176 pp.).
. “ Child Welfare.” Five Fields of Social Service:
Reviews of Research. Edited by Henry S. Maas.
New York: National Association of Social Workers,
1966, pp. 85-143.
Intervenors’ Defendants’ Exhibit 2
155a
“ Sources of Strain in Practice-Oriented Re
search.” Social Casework (June, 1966), pp. 357-362.
. “ Evaluating the Use of the Team Model.” Differ
ential Use of Manpower-. A Team Model for Foster
Care. New York: Child Welfare League of America,
1968, pp. 33-40.
. “ The Role of Foster Parents in the Future of
Foster Care.” 1967 Special Conference on Foster
Care of Children. New Yok: Child Welfare League
of America, 1970, pp. 228-240.
Borgatta, Edgar F., and Fanshel, David. “ The Child Be
havior Characteristics Form: Revised Age-Specific
Forms.” Journal of Multivariate Behavioral Research
(January, 1970), pp. 49-81.
Jaffee, Benson, and Fanshel, David. How They Fared in
Adoption: A Follow-Up Study. New York: Colum
bia University Press, 1970 (370 pp).
Fanshel, David. Far From the Reservation: The Trans-
racial Adoption of American Indian Children. Me-
tuchen, N .J.: Scarecrow Press, 1972 (388 pp.).
. and Shinn, Eugene B. Children in Foster Care.
New York: Columbia University Press (forthcom
ing).
Fanshel, David, and Moss, Freda. Playback: A Marriage
in Jeopardy Examined. New York: Columbia Uni
versity Press, 1971 (323 pp.).
Fanshel, David. “ The Exit of Children from Foster Care:
An Interim Research Report.” Child Welfare (Feb
ruary, 1971), pp. 65-81.
Intervenors’ Defendants’ Exhibit 2
156a
, and Shinn, Eugene B. Dollars and Sense in the
Foster Care of Children: A Look at Cost Factors.
New York: Child Welfare League of America, 1972
(47 pp.).
Fanshel, David, and Grundy, John. “Foster Parenthood:
A Replication and Extension of Prior Studies.”
Child Welfare Research Program, Columbia Univer
sity School of Social Work, April 15, 1971 (80 pp.;
mimeographed).
Labov, William, and Fanshel, David. Therapeutic Dis
course. (A socio-linguistic analysis of a casework
therapy session, forthcoming).
Fanshel, David. “ Research in Youth Aliyah: Some Gen
eral Views.” Group Care". An Israeli Approach.
Edited by Martin Wolins and Meir Gottesmann. New
York: Gordon and Breach, 1971, pp. 419-426.
. “ Child Welfare.” Encyclopedia of Social Work.
New York: National Association of Social Workers,
1971, pp. 99-103.
, and Shinn, Eugene B. “ The High Cost of Foster
Care.” Human Needs (DHEW -SRS), Vol. 1, No. 3
(September, 1972), pp. 28-31.
Fanshel, David. “ Children in Foster Care: Repeated
Assessment of Their Mental Abilities Over a Five-
Year Period.” Child Welfare Research Program,
Columbia University School of Social Work, October
30, 1972. (108 pp; mimeographed).
Intervenors’ Defendants’ Exhibit 2
157a
. “ The Analysis of the Personal and Social Adjust
ment of Foster Children Over a Five-Year Period:
The Influence of Preplacement Personality Disposi
tions, Family Attributes, and Experiences in Place
ment.” Child Welfare Research Program, Columbia
University School of Social Work, October 30, 1972.
(64 pp.; mimeographed).
“ Parental Failure and Consequences for Chil
dren: The Drug-Abusing Mother Whose Children
Are in Foster Care.” Paper presented at Annual
Meeting of the American Public Health Association,
November 16, 1972, Atlantic City, New Jersey. (To
appear in American Journal of Public Health, 1974).
Intervenors’ Defendants’ Exhibit 2
158a
UNITED STATES DISTRICT COURT
Southern District of New Y ork
-----------------------------4-----------------------------
Organization of F oster F amilies for Quality
and R eform, et al.,
Plaintiffs,
—against—
James Dumpson, et al.,
Defendants,
Excerpts from Deposition of David Fansliel
Naomi R odriguez, et al.,
Intervenor-Defendants.
♦
Deposition of David F anshel, taken before David M.
Horn, a Notary Public of the State of New York, on Tues
day, April 8, 1975, at 9:15 o’clock a.m., pursuant to Notice,
held at Columbia School of Social Work, 622 West 113th
Street, Room 703, New York, New York.
(3) David F anshel, after having been first duly sworn
by David M. Horn, a Notary Public of the State of New
York, testified as follows:
Examination by Ms. Gams:
# # #
159a
Excerpts from Deposition of David Fanshel
[7] Voir Dire by Ms. Lowry:
Q. Dr. Fanshel, the studies to which you have referred,
how many have been in New York City? A. The study
which I am completing now, the longitudinal study, is ex
clusively in New York City.
The study of American Indian children involved 20 chil
dren from Louise Wise Services, and a certain number
from Spence-Chapin Services.
The study of symptoms of children known to out-patient
clinics included some children in New York City.
Q. With regard to the longitudinal study of children in
foster care in New York, from what sources were you
gathering information? A. Very varied. There were three
teams initially established, one focusing on the parents,
one on the agencies and one on the adjustment of the chil
dren. Dr. Jenkins, under separate finding, was studying
the parents. Dr. Deborah Shapiro was studying the agen
cies [8] through telephone interviews with the workers
handling the cases. In the first year, her staff had 900
telephone research interviews. Her book is being pub
lished this fall by Columbia University Press.
Q. Will you tell us in regard to the work that you your
self did? A. I directed the inquiry into the adjustment
of children. And my data comes in various forms.
One, we had pychologists on our staff test the chil
dren 90 days after arrival in care, 2y2 years later, and at
the end of 5 years they were tested whether they were in
care or had returned home. And the study focuses on the
contrasts between the children remaining in care and those
who had returned home, among other issues. They were
given standardized psychological tests appropriate to their
ages.
160a
In addition, we have reports from school teachers about
the adjustment of school age children. We had symptoms
described by social workers who knew the children. We
also had access to Dr. Shapiro’s telephone research data.
We had a child behavior characteristics form filled out
by the worker who knew the child. So it’s a variety of
test material and survey data.
# # *
Ms. Gans:
[15] A. Generally they both emphasize that most children
are in care because their parents break down in their
ability to function, in their ability to cope. And that may
manifest itself in overt mental illness, it may manifest
itself in what would be considered deviant behavior, ar
rests. But the overwhelming thing is the breakdown of
parents to function that accounts for children being in
foster care.
* # #
[22] Q. Do you have specific findings as to the rate of
discharge of children in foster care? A. * * * Yes. 24%
of the sample was discharged in the first year, 13% in
the second year, about 8% the third year, 9% the fourth
year, 7% the fifth year.
* # #
[23] Q. Does your study inquire into the relationship
between the discharge of children from foster care and
visiting? A. Yes. I refer now to Chapter IV of my
book, which is exclusively devoted to visiting, and which
will be published as an article in December in the Social
Service R eview.
Visiting is the best predictive variable in getting a child
home. In the first year, if we relate visiting to discharge,
Excerpts from Deposition of David Fanshel
161a
for example, just to give you some information on this
question, parents who on the four occasions in which we
got visiting information over the years who uniformly
were reported as high in their [24] visiting, S6% of their
children returned home.
That is, 43% of our entire sample were children whose
parents uniformly visited them to the maximum possible;
and 86% of these children returned home.
Another 14% of the sample had parents whose visiting
went from low to high presumably as they improved in
their functioning; and 53% of these children were dis
charged.
21% of the sample had parents whose visiting declined
over time, and 36% of these children were discharged.
22% of the sample were parents who were uniformly
low; and 41% of these children were discharged. These
included a large group of mothers who could not visit in
the first year because they were hospitalized; but when
they left the hospital, took their children home.
So among a number of variables that are bound to be
critical or significant in predicting whether a child will
go home are visiting, behavior, the condition of the mother,
and the investment of case work time in the case.
In my study those were the three important predictive
variables. But also, ethnicity is a predictive variable.
* * *
[26] The three variables I have been identifying are
the quality of the mother, the amount of case work time,
and whether visiting took place. * * *
* * *
[29] In the United States, we have an enviable record
of having moved from the large congregate institutions
Excerpts from Deposition of David Fanshel
162a
where children used to be housed not too long ago, to the
placement of children in individual family homes.
* # *
[30] But that arrangement is based on the notion that
a beleaguered parent who is succumbing to whatever
forces are operating upon her in preventing her from
functioning, can be assured that these services will be ren
dered on behalf of her children, and will also be assured
that her parental rights will be respected. And tremend
ous emphasis is placed upon the need for respecting par
ental rights, because it was recognized by the people who
helped create this system that if you could not remove
the child from the system, if you created a system in
which, essentially, you had transferred parents, that this
would make the situation unacceptable to the biological
parent who was in distress.
# # *
[31] Therefore, the selection of people, and supportive
work done by agencies is to help the foster parent under
stand the distinction between having their own child, or
having an adopted child and having an interim responsi
bility for somebody else’s child. And it’s not infrequent
to find agencies working with the problem of foster par
ents being inhospitable to the own parent, or feeling that
since they offer such superior care, why don’t they take
full possession of the child?
But that would be basically violating this rather deli
cate understanding of the agency as negotiated with the
foster parent.
Excerpts from Deposition of David Fanshel
# # #
163a
[32] Q. Professor Fanshel, on the basis of yonr studies
and your knowledge of the foster care system what, in
your opinion, would be the consequences of giving foster
parents, after one year, the right to try to keep foster
children in their homes?
* * *
[34] Many of these parents are poor, have limited edu
cation, have suffered through horrendous life experiences.
And to interpose the foster parents in [35] any action in
which the agency seeks to return the child to its own home
imposes a burden on that biological parent which makes
the system increasingly difficult for the parent to cope
with.
Therefore, I see such action as creating confusion as
to what are the respective roles. For poor people, it
would mean that if you became mentally ill, or break
down in your functioning in other ways, and you require
the aid of a child welfare agency to provide interim care
for your child that, with all the other problems you have
to cope with, you have to also struggle with the fear that
that foster parent will have replaced you. That will mean,
as far as I can see, that poor people who need the serv
ice will be loathe to use it for fear of losing their child,
and that they will resort to other arrangements less de
sirable, less subject to the service, the professional service
that is required, and increasing the hazard that children
will be cared for in makeshift, unsatisfactory living ar
rangements.
So that I would strongly oppose the giving of tills right
to foster parents merely on the basis that they have pro
vided care under contract with an agency for a period of
a year.
Excerpts from Deposition of David Fanshel
164a
[36] Q. In your opinion, on the basis of your knowl
edge and experience of the foster care system, and your
research, is it desirable, from a social policy point of
view, to give foster parents, after one year, the right to
plan for the children in their homes?
* * #
A. Foster parents do not have the competence to plan
for the child. They do not have access to the full informa
tion besetting the child’s family, they do not have, by
training, the ability to appraise the child’s vulnerability.
They certainly do not have the ability to objectively ap
praise their own mode of care and their investment in the
child.
The degree to which the placement arrangement is
satisfactory for the child must be vested in parties who
are not immediately interested in the outcome. It must be
vested with parties who have professional competence to
assess the situation.
Of course, when children are placed in foster families,
there is some understanding that mistakes can happen.
We have studies which show that when [37] children tend
to accumulate in public group shelters, agencies become
less strict in the standards they apply in the selection of
foster parents, that they tend to take more risks, because
they do not wish the child to continue in a large public
shelter. But in taking the risks, they have to be ready on
a standby basis if things are not working out as was
hoped and anticipated, to remove the child, and place the
child in another setting.
The assessment of foster parents is not a science; it
requires an appraisal, a judgment. And often, the judg
ment is made under the stress of children accumulating
Excerpts from Deposition of David Fanshel
165a
in congregate shelters. And certainly, the foster parent,
who may develop a neurotic attachment to the child, or
who may feel the need to displace the own parent, a fairly
common phenomenon in foster care placement, is not in
a position to judge whether their attachment is such as
to exclude the own parent, or to burden the foster child
with a problem in counter-pulls and identification. This
has to be assessed by the responsible outside party.
* * *
Excerpts from Deposition of David Fanshel
[38] A. Foster parents have a very delicate and difficult
task to perform. They must provide consistent care to
children many of whom have suffered trauma in their
earlier living experiences.
We ask the impossible of them. We ask them to be
loving, devoted people, warm and giving to the children.
At the same time, we ask them to do this without getting
a return that parents normally get from their children.
We ask that they not expect the reward for their adminis
tration to the children, in the form of total possession
of the child.
So it is a rather delicate thing. And therefore, in in
terviewing applicants to be foster parents, great care is
vested in assessing the underlying motivation, because a
successful foster parent is one who facilitates the relation
ship of the child with its own parent. I f that were not
true, if the foster parent undermined that relationship
even subtly, then that child would be in a situation which
should not be inflicted upon him.
It’s a very difficult assignment; and many of us who
study this phenomenon have extremely high regard for
people who are able to carry this out so effectively.
It is quite an astonishing performance that most of
them do when they give this service to the community.
lG6a
[39] Q. Professor Fanshel, ■on the basis of your study
and experience, in your opinion is it possible for foster
parents to be nurturing and supportive of a child, even
though they understand they are to separate from the
child f
Excerpts from Deposition of David Fanshel
* * *
A. Yes, by and large. In my study in Pittsburgh and
[described] in the book Foster Parenthood, [and in] a
replication study in Montreal by Louis Boivin for the
Society for Service to Families in Montreal, the same
thing was found.
In my study of foster parents, in the longitudinal study,
we find that surprisingly, by and large, [foster] parents
are able to make the distinction between having an in
vested attachment to a child as if it were your own, and
having a time-limited and contained attachment, which is
constricted by the contractual arrangement. Surprisingly,
many of them are able to do it.
For many foster parents, it even goes the other way,
where the foster parent can only relate to the child in
certain age groups. In my study in Pittsburgh we found
foster parents who could only take care of infants and
very young children; and when they got older, [40] needed
to have a new child brought in, and the older child moved
on. * * * And of course, there were others who developed
specialized capability with older children.
It is an important social phenomenon which we don’t
fully understand and need more research on, because we
know that we tend to recruit foster parents from the
lower middle class and the working class; but they seem
to be a specialized kind of people. They seem to be more
167a
traditional, they are less prone to have situations in which
the woman will seek outside employment * * *
* * *
Excerpts from Deposition of David Fanshel
* * * They are people who are home-centered, allow
easy entrance and exit of children from their families,
don’t make the kind of [41] demands for payoffs that
middle class couples make of large extended family sys
tems. * * *
* * *
[42] So we do have—while most do well—that is, the
selection procedure—we do have many instances where
unwholesome attachments are manifested, where there is
lack of stimulation, where there is a severity in the child-
rearing, which exacerbates the child’s emotional difficulties.
A study by Dr. DeFries and Jenkins, in Westchester,
showed foster parents who were having problems in the
alleviation of emotional disturbance in children even when
the best psychiatric care was given the children. That is,
their inability to get related to the children’s emotional
problems was identified by the psychiatrist as one of a
series of problems in placement.
For instance, teenagers were acting out problems with
foster families. So that Dr. DeFries and her colleagues
wondered whether the child welfare system would not
have to move towards small congregate units because of
this failure to resolve problems of children in foster family
care.
* # *
[46] What I worn' about now is that in the absence
of a large pool of children available for adoption that
lGSa
many of the couples who normally would adopt are now
looking to foster care as a way of assuaging their pain
in not having a child. So I fear that the problem will
increase, of the kind of attachment to a child which under
mines the rights of the biological parents.
# * *
[47] Do you know whether there’s a shortage or surplus
of foster parents in New York City, for example? A.
Foster parents have always been hard to come by, and
it’s nearly always been the result of active recruitment
campaigns. And that doesn’t mean that because people
apply you have an adequate pool of applicants.
And so, one of the sources of great concern is a very
limited pool of applicants to select from, and the problem
that you may be mismatching a child with the wrong
foster family because of the limited pool.
* * #
Ms. Lowry: Objection to relevance.
A. Well, you have a child with age, sex and behavioral
characteristics. Professionals in the field have recognized
that most people cannot be parents to all [48] children.
They have certain proclivities. Some children bring out
the best in them, some provoke them. * * *
So the problem is to anticipate the kind of child who
will bring out the foster parents’ best qualities in making
the match. But that is an imperfect process. It’s based
upon appraisal of the child and the family. So that the
placement must be viewed as an experiment in living.
And it demands that the agency pay close attention as
Excerpts from Deposition of David Fansliel
169a
to what’s going on, because if they mismatch, as has
occurred, the child will pay the consequences for that.
And we have the problem of foster parents demanding
the removal of a child that they find, you know, not satis
factory. And one of the hazards of family care placement
is the turnover in care.
* * *
In your opinion, Dr. Fanshel, on this basis, would [49]
rules which permit foster parents to prevent the removal
of children from their homes be desirable?
# * *
A. I think it would not he desirable, because what that
suggests is that the foster parent is in a position to
appraise their own involvement with the child. And in
those situations which are familiar to family care agencies
where the parent needs to use the child for their own
psychological purposes, to replace a child who has been
lost, for a variety of potentially neurotic reasons, is to
ask those people least likely to be objective to appraise
the nature of their own involvement. Their intense at
tachment to the child, despite the negative aspects of the
relationship, makes it very difficult to disengage the child
when an error in placement has occurred.
Q. Professor Fanshel, biological parents also have neu
rotic attachments to children sometimes.
In your opinion, are you applying a different standard
to foster parents than to biological parents? A. Abso
lutely. I f a child is living with the parents, [50] and they
have emotional problems which severely intrude upon
them, one attempts to get help for them. But the basic
commitment to the biological relationship means that one
Excerpts from Deposition of David Fanshel
170a
anticipates the integrity of the family is ongoing, and not
to be disturbed. But if it is through an agency of the
State or its surrogate, through a volunteer agency, that
is a situation that must be corrected. And there is not
the danger of breaking a traditional tie, a family tie; and
so, there is a very different set of circumstances as be
tween a foster child in a foster home and a child in his
own home.
Excerpts from Deposition of David Fanshel
* * *
Q. Professor Fanshel, your longitudinal study focuses
on children in foster care? [51] A. Yes.
Q. And you have already described to some extent the
research methods.
Could you explain in greater detail the way in which
you studied the children in foster care?
* * *
A. In our study, for example, in field interviews with
the parents, we got developmental histories of the chil
dren, and created three indexes of their previous history
before entering care, to include that in the equation in
trying to determine why he looks the way he does five
years later.
So we take into account the early life history, we take
into account the length of time children spent in care, the
number of turnovers they have experienced, whether they
have been visited, whether they have gotten casework
help, in quantity or mot. We have taken into [52] account
qualities of foster parents.
I remember, in designing the foster parent appraisal
form, using inputs in Montreal for the New York study.
# * #
#* *
171a
Q. Could you describe the kinds of ways in which you
tested and measured how the children in your study fared
in foster care? A. Yes. Well, the pyschologists visited
the children wherever they were placed.
We had three pyschologists hired by our project. I
tested them, as I believe I indicated, at 90 days, at 2%
years and at 5 years.
In addition to the intelligence testing, we gave the chil
dren a projective test, a figure-drawing test and a Michi
gan picture test.
[53] We also had the caseworker rate the child on be
havioral characteristics on 117 items on a form developed
with Dr. Borgatta, the University of Wisconsin, and now
at Queens College.
We had teacher ratings on their school report form.
* * #
[54] Q. Professor Fanshel, in your work with foster
care adoption in general, and in connection with this par
ticular study, are you familiar with the psychiatric liter
ature that has been developed on the effects of separation
on children! A. It’s not just the psychiatric literature.
![exclusively.] It’s an interdisciplinary area [containing a]
literature which covers psychiatry, child development; it
even covers animal studies.
In other words, this is a literature which many people
have contributed to. And I ’m acquainted with the psychi
atric portion of it and I ’m also acquainted with the other
studies.
Q. Professor Fanshel, I show you these affidavits, which
have been marked for identification, and ask you whether
you have had occasion to read them (handing)!
Excerpts from Deposition of David Fanshel
172a
Ms. Lowry: Before yon go on, would you please
identify the affidavits by the affiants and by the
dates that the affidavits were executed?
Ms. Gans: Affidavits of Professor Joseph Gold
stein and Albert Solnit, dated October 10, 1974.
Maybe I will limit it to this one, and just say A.
(Ms. Gans hands document to the witness.)
Q. Professor Fanshel, what is your opinion of the con
tents of the affidavit?
# # #
[56] A. Well, these are eminent psychiatrists and have
distinguished professional histories. And I have no ques
tion on this level, that they are competent in their pro
fessional work.
It is only in terms of phenomena which must be pro
duced by professional scholarship, that I deem it appro
priate to comment, to make comment about.
There is an uneven history in psychiatry in terms of
its fascination with the problem of separation, and its re
search productivity. The reason for the fascination with
separation is that it is a linchpin in the basic pyscho-
analytic theory, * * *
But the history of this performance, in which I would
place the work of people who have provided these affi
davits, in that intellectual context is, as I have indicated,
an uneven history in terms of the [57] rigorous necessity
of the research.
# * *
(58) There is a school of thought which indicates that
children can develop multiple forms of relationships with
Excerpts from Deposition of David Fanshel
173a
adults, that they are sturdier and hardier than the pro
ponents of the deprivation theses and those concerned with
separation problems would indicate.
My major criticism of the pronouncements of the psy
chiatrist referred to is that these are based upon [59]
selected cases from their own clinical caseloads. And the
representativeness of these cases in terms of the larger
phenomenon of maternal separation has not been demon
strated. There is no approach to measurement of the phe
nomena in a systematic way so that what I would consider
analysis, data analysis, could take place. There is no quan
tification of their data in any form that a reputable re
searcher would respect. And therefore, one has to say
that this is a very specialized view of the separation phe
nomenon.
Excerpts from Deposition of David Fanshel
* * *
Q. What were your findings, Professor Fanshel [60]
concerning how children in foster care fared over the
five-year period? A. I base this view on my follow-up
study in adoption, my studies of American Indian chil
dren placed in 15 states, and a recent effort to test out
—a computerization effort to gather data on child adjust
ment for the New Information System in New York, and
on my longitudinal study.
And I basically have the view that, by and large, these
children are highly durable, that they, amazingly, take all
kinds of social insult and incorrect modes of handling,
and come up their own feet. That is, the burden of the
literature indicates a greater stamina, a greater ability
to withstand trauma, than would [be claimed by] pro
ponents of the “best interests of the child” school, who
they portray the children as so vulnerable that after a year
in one setting, if they move to another, they see the hazard
174a
of a pathogenic process taking place which is so over
whelming a hazard, that one should [accommodate to]
approve even the earlier transient relationship.
* * *
L61] A. * * * How They Fared in Adoption, a Follow-up
Study, * * * was published by Columbia University Press
in 1971— 1970. In it, we find that the number of place
ments experienced by children prior to their adoption—and
these were adoptions that were followed up to adulthood,
with interviews with their parents— our data revealed that
the number of different temporary placements experienced
by the adoptees prior to their adoption seemed to bear
very little relationship to their subsequent life adjustment.
Excerpts from Deposition of David Fanshel
# *
I do not find this in the longitudinal study, that the
number of placements correlates with negative outcomes
in terms of the child’s adjustment.
* * #
Q. Professor Fanshel, could you describe in detail your
study, How They Fared in Adoption, giving the size of
the sample and the various controls and the research
methods you used? [62] A. I don’t portray it as the
world’s gift to research. I have a modest perspective
about it. It’s more systematic that other people have
done, but I do not portray it as resolving questions.
# * #
175a
[68] A. Well, 42% of the samples had experienced only-
one placement. 30%, 2; 18%, 3; and 10%, 4 or more.
* * * [T]he number of placements was not correlated
with the adjustment of the children, as one would antici
pate from professional theory.
Excerpts from Deposition of David Fanshel
* * *
* * * I would say that I would advise continuity of
care if all things are going well; and I would assume
that agencies would take into account a child’s attachment
and his dependency on [69] others. I do take the position
that if something seems to be going wrong in placement
from the agency’s perspective, that the weight of evidence
is in support of the notion that there will be deleterious
consequences. . . . [ i]f the child has been visited by his
parents, he’s able to maintain dual relationships often.
So that the separation from the foster parents is not a
separation from all of the important contacts he has had.
It may be the restoration of the primary contact. And
in this sense it’s a tradeoff. He’s gaining a lot from the
restoration of primary contact. He may have an instan
taneous reaction to the separation from what he’s gotten
accustomed to.
Q. What do you mean by “primary contact” ? A. Well,
we assume that relationships are ordered in this world,
that every mamma and papa is first in your life. It ’s
remarkable in the light of the people who have never seen
their parents who have searched for them. And there’s
been this whole phenomenon in the adoption field of the
quest of grownup people for their forebearers. So that
I see >as a primary [70] relationship the biological tie.
* * * I don’t take the view that the primary relationship
176a
has been improved if there has been total failure of the
child-caring personnel. I do take the view though, all
things being equal, that the relationship is the most sig
nificant one potentially, and it is the obligation of agen
cies to support that relationship. * * *
Q. In your experience, Professor Fanshel, did you find
that agencies moved children lightly? A. No. As a mat
ter of fact, to be critical of the agencies, it is that we
would be more often likely to allow a child to remain in a
situation, because under the pressure of high caseloads,
the pressure of inadequate supply of foster homes, it’s
simply easier to let Johnny stay there than to find a new
home and to go through the whole hassle of replacement.
# # #
Excerpts from Deposition of David Fanshel
* * *
[71] I have seen appraisals of foster parents. And
in the work of Martin Wolins in his book S e l e c t i n g F o s t e r
P a r e n t s , which is the name of the book, that view comes
out, that under pressures there’s a stretching of agency
standards into accommodation with situations which under
other circumstances would not be accommodated to.
So that I have the view that a more rigorous monitoring
of this system would not permit children to stay where
they are in many circumstances.
* * #
[74] Q. On the basis o f your studies, experience and
knowledge of the field, would you say that the fact that a
child has been in foster care for a year alone is a mean
ingful criterion for determining the attachments which the
child may develop?
177a
Excerpts from Deposition of David Fanshel
Ms. Lowry: Objection as to form.
A. I find it’s a rather arbitrary time figure. * * *
* * *
[75] Q. To your knowledge, Professor Fanshel, are
there any standards for social work decisions?
* * #
A. There are general principles of work. For example,
in this field, the Child Welfare League of America has
promulgated a document called Standards For Foster Care
Service, which is based upon very hard work by League
professionals meeting regularly to conceptualize the bases
for service to children in foster care. This has recently
been revised; and it is up-dated regularly. This is similar
to the kind o f standards that the American Pediatrics
Association and others maintain for their work. So that
if one examined this documentation, one would find major
orientations to this work.
There is also a licensing function exercised by the State
and by the City so that professional staff come into agen
cies, read records, appraise what is going on in individual
case situations. The agencies are required to report to
the City agency and the State agency on what their plans
are for the child, and so (76) forth.
So that my answer is that this is an area which is gov
erned by professional concepts. To not have these would
be anarchy, you know. Not to have set forth what are
the principals o f work in this field would create an in
tolerable situation, with 300,000 children in foster care.
* * *
178a
Excerpts from Deposition of David Fanshel
[78] By Mr. Kantor:
Q. Dr. Fanshel, in your longitudinal study, did you have
occasion to look at not the reasons why, but the source
through which the child was originally placed in foster
care!
* * *
[79] A. Four out of five placements in our study are
voluntary placements.
Q. 80% ? A. Yes.
Q. And the remaining 20% came through the Family
Court? A. Yes.
* * #
[80] A. Length of time in care was one of my most im
portant analytic variables. And in my study of adjust
ment, I did not find what one would expect to find, that
is, that length o f time in care would be predictive of some
breaking down process, predictive of loss in IQ, or pre
dictive of increased emotional disturbance.
Q. Those were things you did not find? A. I did not
find that. But when I differentiated by ethnicity, for
example, on IQ changes, I found that Puerto Bican chil
dren showed an increase in their IQ related to being in
care for the first 2% years, and then it’s stable.
The black children showed an enhanced IQ over a 5
year period.
The white children showed a decline in IQ associated
with being in care.
* * *
[82] Q. I quote: “ Of the 229 subjects still in care at
the end of five years, 16 had experienced one discharge
179a
and reentry, and 5 had gone through this experience on
two occasions,” So that’s 16.
“ Of the 367 who had left care, with 29 adopted children
excluded, 33 had experienced 2 discharges and 1 reentry.
“ 6 had experienced 3 discharges and 2 reentries. And
2 had experienced 4 discharges and 3 reentries.”
The total number o f children who came in and out of
care is about 10%, 62 cases.
* * *
[83] Q. I did record, and got from the worker, changes
in circumstances which led to the exit of the children out
of care.
For instance, 17% of the families where the child was
discharged had moved to better housing, and 24.7% had
moved without the condition being determined.
13%* had a change of family finances, with 13% ac
cepted for public assistance, and 15% being self-maintain
ing.
31% of the families had an improvement in the natural
parents’ health, and an improvement in home status.
17% had a change in the presence of the parent, [84]
that is, a parent had come home.
I had the agencies tell me whether they approved of
the child coming home. And 47% approved strongly,
20% moderately approved, 16.5% had a mixed or neutral
reaction. 7% moderately approved** 17% strongly op
posed. So that by and large the agencies were in favor of
the child going home.
* * *
Excerpts from Deposition of David Fanshel
* Sic. Probably should be 28%.
** Sic. Probably should be “ opposed.”
180a
[86] 17% of tlie children who returned home
came home because the mother recovered from
mental illness. 12% of the parents had desired a
time limited placement in order to work out their
personal plans, such as to get job training or treat
ment.
Another 9%, a relative offered suitable plan for
the care o f the child.
Another 9%, the mother recovered from physical
illness. * * *
[89] 'Can yon tell me, Doctor, why yon feel, then, that
moves should be made carefully, and should be thought
out carefully?
# * *
A. I worked, myself, as a worker in foster care as I
started my professional career, so I know foster children,
I know the pains that these children experience in mov
ing. That is a very human 'situation, and one o f which
those who work with children are acutely aware.
It’s with great regret that you uproot a child except
on that usually glorious occasion Avhen he goes to his
own parents; and that is usually a time of rejoicing, that
the family is reunited.
On the basis of our interviews with children at 2%
years, and I read—these were tape recorded interviews
with foster children, in which I duplicated Weinstein’s
work at the Chicago Child Care Society, published in the
hook, T h e S e l f I m a g e o f t h e F o s t e r (90) C h i l d — I read
all of the transcript of these interviews with the children.
And it came through in overwhelming good measure that
the children had positive emotional attachments to their
own parents, that their original parents have meaning for
them. * * * what came through for me on the basis of
reading all of these interviews was the meaning o f one’s
own family to a child.
Excerpts from Deposition of David Fanshel
181a
[91] Wliat I object to in the depositions o f the psychia
trists is the cavalier disregard of the value of one’s bio
logical tie. By “ depositions of the psychiatrists” , I mean
the ones referred to by Mrs. Gans, and which were intro
duced into exhibit here.
* * *
[92] Q. Can you tell me, Doctor, in what respects, if
any, you disagree with the theses propounded by Drs.
Goldstein, Freud and Solnit?
* * *
[93] A. I don’t pose as an authority on the book, because
I would have to reread it. But what comes through to
me as an error in the point of view taken is that they
summarily and invariably would place a premium on the
continuity of care, raising it to a legal problem or a pro
gram policy in this field, on the basis of selected clinical
case experience that they had, and they want to general
ize from the clinical cases that have been observed to the
phenomena of foster car, which include many situations,
types of situations, which they had not observed, and
about which they provide no data.
So that it does seem to me that this provides an inade
quate social foundation to develop social policy and pro
gram or orientation.
* * *
[94] A. I would characterize it as; deductive thinking from
general principles arrived, at on the basis of other scholar
ship, working back to the problems of the child deduc
tively from the general principles, without any reference
to sampling, representativeness of cases, to the general
Excerpts from Deposition of David Fanshel
182a
population of children in foster care. I find the reason
ing quite specious.
* * #
[99] Examination Ms. Lowry.
Q. Professor Fanshel, I would like to ask you some
questions about the longitudinal study to which you testi
fied.
Can you tell me when the study was begun? A. It was
begun in 1966, the first child becoming eligible for the
study on New Year’s Day, 1966; and we built up our
sample through the period January 1 through August 31,
1966.
Q. How were tire children selected for the study? A.
They were elected by criteria which prescribed that they
would have been in care at least 90 days; that they had
never been in care before that; their siblings had never
been in care before that; they were between the ages of
infancy to 12 years and that they were charges to the
New York City Charitable [100] Institution’s [sic] budget.
* * *
[113] Ms. Lowry: I am going to quote from the
table entitled, “ The Exit of Children from Poster
Care: An Interim Research Report” by David Fan
shel, published in C h i l d W e l f a r e , February, 1971.
Q. I ask you whether you said in that report in part—
and it is quoting from page 67: “ It is noteworthy . . .
that we find children leaving care in the greatest volume
during the earlier phase of placement, and this volume
tapering off markedly over time.”
That is your statement, is it not? A. Yes. I mean you
are reading correctly.
Excerpts from Deposition of David Fansfiel
183a
Q. Considering the fact that you were studying this
land of phenomena, can I ask you why you limited your
study to children who had been in care over 90 days when
in fact there were children who entered and left the sys
tem during the 90-day period? Isn’t it true that the dis
charge would have dropped even more drastically or
sharply if you included the children who entered and left
during the first 90 days?
* # *
[114] A. May I first explain that these data are updated
and in final form in Chapter V of my manuscript, and
I believe I gave you a copy of Chapter V.
* * * [I]t is true that in the first year one in four
children were discharged in that time period but even at
five years; seven percent of the sample [115] left care.
So my perspective between the publication date of that
article and my final manuscript has changed. The per
spective that children continue to be discharged as far as
the fifth year of care, my interpretation of that data is
that the agency can still work on the problem of discharge
with anticipation of some degree of success in getting
children home.
Now as to the reason that we excluded children who
were in care for less than 90 days, that part of our study
was focused on the long-term effect of the separation
from one parent in terms of personal and social adjust
ments. We made the decision if we continue to engage in
an expansive study of this kind, we wanted at least 90
days of care and separation as indicating a substantial
amount of separation from one’s parent. Our study was
not to include children who use foster care on short-term
basis. We didn’t anticipate there would be that much
effect on them.
# * *
Excerpts from Deposition of David Fanshel
184a
[118] Q. It is a fact, is it not, that it is a [119] life-time
system for many of the children?
♦ * *
Q. In fact, didn’t your study indicate that at the end of
five years, 39 percent of the children that you studied
were still in foster care? A. Yes. Some of them were in
institutions but some were in foster families.
Q. In generic foster care? A. Yes. * * *
* * #
[136] Q. Do you have an opinion as to whether the
competence of the agency worker varies from agency to
[137] agency? A. I have an opinion that it does vary.
# * *
[141] Q. Do you have any psychiatric training, Profes
sor Fanshel? A. No.
[142] Q. Not all psychiatric theory is based on quanti
tative analysis, is it? A. No.
* * #
'[143] Q. Professor Fanshel, are you familiar with the
decision making process within individual agencies with
regard to a plan for a child?
# # #
[144] Q. Are you familiar specifically with how that
process takes place? A. I think it varies by agency.
* # #
Excerpts from Deposition of David Fanshel
185a
Would it be your testimony that part of the impossible
which the agencies ask of the foster parents would be to
accept the agency decision no matter what?
* * #
[145] A. I was using that as a figure of speech indicating,
if you will, pressures of a difficult assignment that foster
parents were faced with. * * * A foster parent who inter
feres with the process of a child returning home is engag
ing in behavior which is problematic on various grounds.
One, it creates great difficulty for the child in finding
his way witli his own family. We must always keep in
our mind that the children who remain in the foster care
are encumbering a financial responsibility upon the com
munity that is enormous. * * *
So it is of extreme importance that children be able to
leave the system as soon as it is desirable and that foster
parents facilitate that departure of the child for the
child’s own interest and also because the community has
an interest that that child not use the expensive service
unless no other recourse is [146] available.
Q. What about with regard to the foster parents of
39 percent of children in your study who had not left the
foster care system after five years? A. Well, I would
hope though, for example, the two years review under the
392 proceedings would result in proper adjudication of
those situations. I f it seems that the parents have
dropped out of the picture that then actions be taken if
the foster parent desires to adopt the child and that in
those hearings those issues be brought out and adjudicated
properly.
# # *
Excerpts from Deposition of David Fanshel
186a
A. My understanding is that this case was restricted to
an issue of what to do if a child had been in the home
[147] for the year. In my study of children, some of them
had been in foster homes for up to five years; and from
a social policy perspective, it seems to me that children
in long-term foster care are entitled to some resolution
of their indeterminate status from a social policy per
spective, if their parents have absolutely failed their child
despite agency efforts to involve them, and I would indi
cate it is important to indicate that the agencies have
helped the natural parents as a first condition, given that,
if the agencies have attempted and the parents have not
responded, from the social policy perspective, I would
think that an alternate plan be arranged for the child so
he is not in limbo. I am very much for foster parents who
have had children for many years and wanted them for
their own adoptive child, to facilitate that process.
* * *
[155] Q. A t the time of the two-year review, you are
in favor of foster parents objecting to proposed removal
of a child from a foster home? A. Yes. In the context
of an overall review of the Court, the parents must con
sider that the Court is reviewing the child’s overall status
and the foster parents’ input as part of the overall in
formation available to the Court.
Q. You are against the foster parents objecting to the
removal of a child from a foster home; is that correct?
A. Yes. That objection interposes a procedure which can
result in a child remaining in care for a sustained period
of time; can interfere with the child’s movement [156]
when that movement may be very necessary.
# * #
Excerpts from Deposition of David Fansliel
187a
[159] By Ms. Gans:
Q. Professor Fanshel, are you opposed to foster par
ents adopting a child that is free for adoption? A. No.
As a matter of fact if the natural parents have essentially
abandoned the child and the child has developed a loving
relationship with the foster parents, I would do every
thing to encourage such adoptions.
I do have one problem about the question of adoption,
vis-a-vis foster parents, and that’s from a social policy
perspective, there is in my view a disposition in organized
foster parents’ groups to be unsympathetic to the prob
lem of the natural parents and to promote the interests
of the foster parents at the expense of the natural par
ents. I find a lack of compassion in their [160] organized
efforts with respect to the problems of natural parents;
and that gives me pause.
Excerpts from Deposition of David Fanshel
*
[170] By Mr. Kantor:
Do you oppose the participation of foster parents in the
decision to remove children from foster care? A. I be
lieve the principal person in that process is the parent
and the parent’s readiness to take the child home is cen
tral to the relocation of the child’s home.
[171] I would be opposed to having the foster parent
being treated as a co-equal partner to procedures and I
think it is the responsibility of this social service system
to meet the needs of the child and his parents. However,
if the foster parent has information about the conduct
of the parents and the effect of the parent’s conduct upon
the child, I have no objection to the foster parents shar
ing that information with the agency worker so that can
be considered.
188a
I think that is different than having the foster parents
come into play at a hearing as to the suitability of the
child going home.
* # *
Excerpts from Deposition of David Fanshel
[179] A. I think being a parent involves a civil right; that
is, a parent has a right to plan the future of his or her
own child; to interfere with that right is to interfere with
a basic responsibility.
By Ms. Lowry:
Q. Do you think the parent or the child— A. I con
sider them both a part of the equation, and I don’t see a
child’s interest disassociated from Ms parents’ interest.
* # *
* # *
Table 9
Inter-A gency T ransfers, I ntra-A gency Transfers, R eentries into Care of Discharged
Children and T otal Number of P lacements Experienced by Study Subjects Over
F ive Y ear Period
Number of
Placement
Moves
Inter-Agency
Transfers
Intra-Agency
Transfers
Reentries of
Discharged
Children
Total
Placements’1
No. % No. % No. % No. %
Zero 377 60.4 467 74.7 562 90.1 NOT APPLI
CABLE
One 191 30.6 101 16.2 49 7.9 261 41.8
Two 50 8.0 44 7.1 11 1.8 186 29.8
Three 5 0.8 11 1.8 2 0.3 115 18.4
Four or more 1 0.2 1 0.2 — — 62 10.0
T otal 624 100.0 624 100.0 624 100.0 624 100.0
a Reflects the sum of inter- and intra-agency transfers and reentries into care after discharge.
E
xcerpts from
D
eposition of D
avid Fanshel
Table 10
Number of Placements Experienced by Study Subjects by Y ear of L ast D ischarge from
F oster Care”
(N=577)
Y ear of Last D ischarge
Still
Discharged Discharged Discharged Discharged Discharged in Care
Number of First Second Third Fourth Fifth Five Years
Placements Year Year Year Year Year After Entry
(percentages)
One 79.5 56.7 38.6 45.1 25.0 15.9
Two 18.4 24.3 36.4 19.6 32.5 38.3
Three 2.1 17.6 22.7 15.7 22.5 28.6
Four or more — 1.4 2.3 19.6 20.0 17.2
T otal 100.0 100.0 100.0 100.0 100.0 100.0
Number
of Cases 141 74 44 51 40 227
Mean Number
of Placement 1.23 1.64 1.89 2.10 2.38 2.47
Standard Deviation 0.47 0.82 0.84 1.19 1.08 0.96
X 2— 182.059, df = 15, p<.001; F— Test (differencesof column means)— 39.818, p < .001.
a Twenty-nine adopted children and 18 children transferred to state institutions not included in this analysis.
E
xcerpts from
D
eposition of D
avid Fanshel
191a
Excerpts from Deposition of Joseph Goldstein
UNITED STATES DISTRICT COURT
Southern D istrict of New Y ork
No. 74 Civ 2010 RLC
♦
Organization of P oster F amilies for
E quality & R eform, et al,
Plaintiffs,
vs.
James Dumpson, et al,
Defendants.
------------------«-----------------------
The deposition of Joseph Goldstein, taken at the Child
Study Center, 230 South Frontage Road, New Haven, Con
necticut, on Tuesday, April 1, 1975, commencing at 5:15
o’clock p.m., pursuant to the Federal Rules of Civil Pro
cedure, before Robert W. Merchant, a Notary Public in
and for the State of Connecticut.
# * #
[3] J oseph Goldstein, being first duly sworn by the
Notary Public, was examined, and testified as follows:
Direct Examination by Miss Lowry.
Q. Dr. Goldstein, would you state your educational back
ground after college, please? A. After college I received
192a
a Doctorate in Political Science from the London School
of Economics; Law Degree from the Yale Law School;
and I am a graduate of the Western New England Psycho
analytic Institute.
Q. Can you tell us what experiences you have had with
regard to working with children, any research or treat
ment? [4] A. I have not treated children. My primary
experience is through the literature and through a very
extensive contact with Dr. Anna Freud, and study at the
Hempstead Clinic in London, for three months, and con
tinuous exchanges with her and also the Child Study
Center here in New Haven.
Q. I show you a copy of a book entitled, Beyond the
Best Interests of the Child. Are you familiar with this
book? A. Yes, I am.
Q. Are you one of the authors? A. I am one of the
authors of the book.
* * *
A. They are based substantially, though not certainly ex
clusively, I would say first on common sense, second [5]
psychoanalytic theory and three, a clinical experience that
is reflected in a large body of literature and the experi
ences of my two co-authors, actual experience of theirs,
Anna Freud and Dr. Solnit.
* # #
[8] Q. Based on your training, do you have an opinion
on how the existence of blood ties affects the development
of emotional bond between the parents and the child and
the child and the parents?
* # #
Excerpts from Deposition of Joseph Goldstein
193a
A. On the basis of reading a number of cases which
concern themselves with the development of emotional ties,
it is my understanding and belief that there is an enor
mous investment on the part of the biological parent in
the children and the best opportunity to develop emotional
ties is when that investment continues from the moment
of conception through birth, through the entire develop
ment of the child to adulthood, and so on. In that sense,
a blood tie is very significant, but it is not critical in the
event that, once the child lias left the chemical exchange
for the social exchange, once that child is part of this
world, it is this relationship that develops with the care
taking adult over a [9] continuous period with the child,
that person may or may not be the biological parent.
Ideally it is.
Q. Based on your training, do you have an opinion as to
whether it is possible for there to be an absence of sig
nificant emotional development between natural parents
and the child—
* « *
A. I would say this: that psychological ties between bio
logical parent and child in both directions need not de
velop or can be shattered by substantial interruptions of
time, for separation and the length of time that is required
for the breaking of those ties depends very much on the
developmental stage that the child is at, at the time of
separation.
By Miss Lowry.
Q. You just used the term, I believe, “ psychological
parents.” What do you mean? A. By psychological par
ent we mean that adult or those adults to whom a child
Excerpts from Deposition of Joseph Goldstein
194a
growing from infancy to adulthood can turn to and has an
emotional investment in, and in whom the adults have
an emotional investment. It’s a two-way thing, a mutual
thing, in which there are psychological bonds between the
[10] adult and the child which gives the child a sense of
continuity about the real world, a sense of belonging, a
sense of knowing where he or she will be the next day,
to whom that child can turn in times of trouble, in times
of joy, for responses that recognize that child as an indi
vidual growing into a person in its own right.
Q. Based on your training and your familiarity with the
literature with which you are familiar and your experi
ences at the Hempstead Clinic, do you have an opinion
on what effect it would have on a child to remove him
from a situation in which he has formed psychological
ties with the adults? A. It depends on under what cir
cumstances the child is removed, and for how long, but
certainly if the removal is at the request of some outside
force and against the wishes of the custodial parent or
the psychological parent, in the instance you are talking
about, it can have a very devastating effect. It can under
cut the sense of authority that an adult has in the life of
that person, and in turn, undercut the kind of trust the
person has in himself or herself and in an adult world
with whom it has to deal.
# * *
[11] Q. Based on your experience and training, would
you consider it less detrimental to the child to review the
decision prior to the child’s removal from a situation in
which he has formed psychological ties or subsequent to
his removal? A. I have no question that when a child’s
custody is in dispute, that unless the child is in extreme
Excerpts from Deposition of Joseph Goldstein
195a
danger or subject to gross neglect, the child ought to re
main with the current custodian until the final disposition
can be made, and that goes for biological parents who are
psychological parents at the time, and it goes for return
ing a child after a very extended period with foster par
ents back to their biological parents.
* * *
[14] Q. Now, you were talking about a period of tem
porary foster care during which ties could hopefully be
maintained with the parent from whom the child was
taken, and then a period after this during which the child
formed new psychological ties.
Can you define for us in any way the initial period, the
period that you described as being a temporary period,
in terms of the actual passage of time? A. Ideally,
the temporary period would be a time set by the Court,
for example, at the time that the child is placed
in foster care and beyond which time foster care cannot
continue with the expectation that the child wall be re
stored to the parent from whom it is separated, with the
expectation that enormous effort will be made to keep
alive the ties between the child and the absent parent,
* * #
Excerpts from Deposition of Joseph Goldstein
# * *
[15] A. * * * that for a child, say, from one year or from
early infancy until maybe two or three years, the maxi
mum time for separation without maintaining contact
with the absent parent might be two, three, four months.
For a child over that it might be six months. For a
[16] child six to ten or twelve, and Dr. Solnit may be able
to give greater specificity beyond that time, it could be
longer.
196a
What I am suggesting in the paper is that even for the
oldest children it never be longer than eighteen months
and the presumption would be for a period after eighteen
months that the ties with the prior or the biological par
ents or the absent parents have sufficiently broken, and
that one looks to maintaining the new relationships that
have developed. Any period like four or five years, no
matter the age of the child, it is well beyond any period
in which one could conceive of maintaining those ties suf
ficiently to justify intervention and changing that rela
tionship prior to resolving the legal issues that might be
involved in the shift.
Q. Would your conclusion in regard to this be different
if the absent parent visited from time to time? A. Cer
tainly one can help keep those ties alive if there is an op
portunity for visiting and one would encourage in real
foster care which we would call temporary care the op
portunity for the child to visit with the absent parent and
for the parent to visit with the child.
* * #
[17] * * * A. 'So the answer is to the extent that one can
maintain these relationships one increases the chances of
being able to restore the child to the absent parent.
# * #
Q. Based on your professional training, do you have any
opinion on the effect on children of keeping them in so-
called [18] neutral foster homes and do you know what I
mean— do you understand that question? A. I ’ve seen
the phrase neutral foster home and it is discussed from
time to time in a number of cases including those con
cerned with the Jewish child welfare cases of a number of
years ago.
Excerpts from Deposition of Joseph Goldstein
197a
I understand it is an effort on the part of the foster
parents to somehow project themselves as aunt and uncle
or some equivalent to that for the child in order to pre
vent the child from developing strong ties to the foster
parents and in order to protect the relationship with the
absent parents.
And my understanding is that it is time and the absence
of the parents that breaks the relationship between the
child and the absent parent, not the attitude of the foster
parents.
* * #
[23] Q. Doctor, would you say that psychoanalysis is
exact in the sense that a science like physics is exact?
A. No, psychoanalysis is an art.
* * *
[24] Q. You define a psychological parent as one who,
on a continuing, day-to-day basis, through interaction,
companionship, interplay, and mutuality, fulfills the child’s
psychological needs for a parent, as well as the child’s
physical needs. A. Yes.
Q. Now, is that a concept, Doctor, which is readily
determined on a generalized basis?
Miss Lowry: Objection as to form.
By Mr. Kantor:
Q. Answer the question, Doctor. A. Yes, I think that
there is a way of describing this from an outside van
tage point, that which we as observers can determine, and
in determining these characteristics of a relationship, can
then posit that there is a presumption that psychological
Excerpts from Deposition of Joseph Goldstein
198a
ties have developed and therefore the adult is a psycho
logical parent.
Q. Can you tell me what indicia a judge, if you will,
will [25] look at in determining whether or not a psycho
logical parent-child relationship has developed in a par
ticular case? A. I would think primarily the period of
time and the uninterrupted quality of the relationship
over that period between the adult and the child would be
critical to that determination.
Q. Would there be other factors that would be taken
into account? A. Oh, certainly. There would be a num
ber of other factors, particularly whether or not the adult
is perceived by the child as the parent or person primarily
responsible for authority-making decisions, who comes to
a period to be almost omniscient and all-powerful, yes.
Q. Would that be a determination that a lawyer or
judge could make as adversary? A. I think there is no
question about it.
Q. Is that yes or no? A. Yes, clearly can.
Q. And that a judge would be able to make a decision
rather than someone trained in social work or social psy
chology? A. Probably from a variety of indicia that
wouldn’t even require such training except in a very un
usual case. If, for example, someone described to the
judge that a child has been [26] living in a family with
one or two adults and some siblings or some youngsters
for a period of time, say, for a child of three years, and
for the last four years of that child’s life, it goes back
after school to a home to those parents, the ones that call
the doctor and the like, the judge can with relative cer
tainty decide, well, those are the psychological parents.
He may decide they are not good and that is another
question, but those are the psychological parents.
Excerpts from Deposition of Joseph Goldstein
# * *
199a
[27] Q. All right. Can you tell me what indicia would
be used to determine when a pre-existing child psycho
logical child-parent relationship had broken down or was
no longer viable?
* * *
[28] A. One would call in as an advisor or some expert
on children, a child analyst, child psychologist, whatever
you will, who would examine the child, examine the adult
parties involved, and give you a date on which these gen
eralizations are based with regard to that particular child
and would tell you the extent to which the ties with the
absent adults are still alive, to the extent to which the
child has felt abandoned by those adults, and the extent
to which new ties have developed, * * *
' # * #
Excerpts from Deposition of Joseph Goldstein
Q. Doctor, are you familar with, for lack of a better
word, the phenomenon of adopted children, years after
the adoption, seeking out their biological parents? A. Oh,
yes.
[29] Q. Does this cast doubt on your concept in your
own mind of the psychological parents—I ’m sorry—the
biological parent-child, psychological parent-child relation
ship breaking down after a comparatively short time, six
months, eight months, ten months, eighteen months? A.
No, I don’t think it is evidence of that. I think it is evi
dence in each child of a strong interest in its origin and
how it began, and whatever mystery is about their origins
that are left unsolved or unanswered, there is interest in
some children now adults a great need to find out about
one’s heritage and that, of course, is true with regard to
family trees for persons who aren’t adopted.
200a
That is part of being a human being, wanting to know
about who we are and where we came from. It doesn’t in
any way undercut the on-going, day-to-day needs of a
child for affection and stimulation from a caring adult.
Q. Doctor, you stated that the child’s sense of time con
trols what essentially is temporary for adults, a sense of
time, and you have said periods based on numbers of the
age of the child, the child, under three years being two
to three, four months, and a child up to about approxi
mately six, being something like six months, and a child
six to ten years, possibly longer, and but never longer
than eighteen months. [30] A. Right. And I also said
that figures are always, the time period must by defini
tion be arbitrary, but I am willing to say that beyond
eighteen months for any child, the presumption must be
that the ties with the absent parent have been substan
tially damaged.
Q. Are you familiar, Doctor, with a study by Eugene
Weinstein in 1965, published as, “ Self-Image of the Fos
ter Clilid and Parent” ? A. No, I am not familiar with
that.
Q. Did you perform any statistical analyses to reach
the conclusions of your two, eight, ten, eighteen months?
A. No.
Q. What were the figures based upon? A. They are
based upon the experience, the clinical experience, that I
draw on from my colleagues and the literature and the
Robertson piece which I alluded to earlier, * * *
* * *
Q. The clinical experiences of the Robertson report,
what population was that drawn upon?
Excerpts from Deposition of Joseph Goldstein
[31] Dr. Solnit: Four.
201a
A. (Continuing) —three or four children whom they took
into their custody at different times and in the spirit of
science to which we have such allegiance, they kept a de
tailed account both orally and by film of the nature of that
experience and the meaning of that separation for the
four children involved, and tried to take into account and
did study the significance of lapse of time as far as—
By Mr. Kantor:
Q. On those three or four children? A. Yes, right;
right.
Q. Now, the Freud study, I take it that was separation
during the Second World W"ar? A. Yes.
* # #
Q. Do you know of any—withdrawn.
The clinical experiences that you base your conclusions
upon, go ahead, Doctor. A. What I was going to say is
the clinical experience [32] often involves reliance on
material about children who are in trouble, who have
been deprived. We as adults and parents and members
of families, just as human beings who live in this world
have a very substantial sense of what it means to be a
child, and what it means to be a part and not how neces
sary it is for the child to have a parent be in contact
with the child and to meet the child’s need and to be re
sponsive to it, and that is all that the continuity guide
line is about, it is protecting the family relationship.
That is why the continuity guideline is so much in favor
of minimum intrusion on family relationships by the State,
in order to prevent interruptions of continuity. The real
problem becomes in recognizing who the family is at any
Excerpts from Deposition of Joseph Goldstein
202a
given point in time for the child, and very often the child
may be if the child is placed in a setting other than the
setting which is the constellation of the biological parent,
it may be the real sibling and that is what we are talking
about.
Excerpts from Deposition of Joseph Goldstein
* # #
[36] Q. Child in foster care for four or five years, is dis
charged pending a final determination and the final deter
mination is affirmed. A. Yes.
Q. Can you tell me, then, Doctor, what harm, if any,
would accrue to the child during the interim period to
remain in the foster parent home? A. I think little harm,
if any. In fact, to the extent that orderly process is the
experience the child has with the outside world, the
chances of transitional shift, because there will be need
for a gradual transition to the new home, it can’t be done
abruptly if the new relationship is to develop securely.
The child will be better prepared if it is done after a
careful deliberation by society rather than an intrusion
because that intrusion, no matter how you try to explain
it to the child, is abrupt, is authoritative, dictatorial, in
a way that will make the child’s new relationship start out
in a suspect way, wondering, can I now be removed from
this other setting, no matter what the determination is.
We are talking about an orderly process [37] for society
determining the child ought to be returned to the natural
parents after such a long stay.
# # #
[38] Q. Do you think that the proper determination of
the child’s best interest or the least detrimental is a legal
decision within the competence of lawyers and judges or
203a
a psychological or social decision? A. I think it is a de
cision that has to be made in a court [39] of law.
* * *
Excerpts from Deposition of Joseph Goldstein
[41] Q. All right. Let us take a child that is seven
years old, who is placed in foster care with a particular—
A. At the age of seven?
Q. With a particular foster-parent and the child’s moth
er visits it every two weeks regularly, okay, in and at the
end of that year, okay, can you say simply because the
one year has passed, that the foster parent is now the
primary parent in that child’s life? A. No, I don’t think
you can say that * * *
* * #
[43] A. For purposes of deciding who ultimately should
be the custodian, I would think you would want a good
deal more information. For purposes of an orderly pro
cedure in which that determination is made, I think it
would be appropriate to presume that [44] the current
custodian after that length of time is the primary cus
todian.
* * *
By Ms. Gans:
[ I ] f there is doubt about the ultimate outcome of the
placement to make a shift prior to an ultimate deter
mination because that only adds to a potential if not a
very substantial detriment to the child’s sense of who he
is in relationship to whom, and in relationship to the out
side world.
204a
Q. All right. Let us posit that there is no dispute, let us
say. A. I f there is no dispute, you ought to move the
child immediately . . .
Excerpts from Deposition of Joseph Goldstein
* * *
[48] Q. You said earlier, I believe you testified that to
some extent time limits were arbitrary? A. Yes.
Q. What do you mean by that? A. What I mean by
that is that any statute whether it is a fixed time to a
sentence in a criminal setting or a given age [49] as evi
dence of a sufficient maturity to vote, they are arbitrary
in the sense that you make a societal judgment that these
people are qualified or not qualified. There are always
exceptions on both sides of the line.
So what I am saying just in order to maintain the sys
tem we have to plunk down for a figure * * *
* # #
[52] Q. So you are saying you can’t tell what kind of
an attachment the child will develop with the foster par
ents in one year? A. You can tell that each time the
child is placed for any substantial period of time, what
ever its age, to the extent [53] it hasn’t been totally dam
aged, to the extent it has some hope about the future,
that it will try and hopefully the parents on the other
side will try to give that child a sense of security and
well-being that it hasn’t got, his sense of trust in the
environment and in those adults and ultimately, hope
fully, in itself, and what you have described is someone
who has been constantly hammered away at and saying,
don’t trust the environment, you can’t trust yourself, you
are going to be moved at whim or, well, that’s your hy
pothetical.
205a
And I ’m saying, don’t create a process, justify another
intrusion, particularly since you don’t know whether the
next move is final and is to be secure until you know
what the next move is.
Q. When you are talking, trying to minimize detri
ment— A. Yes.
Q* — [W jhat do you see as the source of the detriment?
And I will pose two alternatives.
Is the detriment primarily the break in the child’s re
lationship with a person that it lived with for a year, or
is the detriment what will happen to the child in terms
of the care it will receive when it leaves that foster
home? Where do you see the source of detriment? A.
I f you are talking from the child’s vantage point, I [54]
would guess both are anxiety-provoking experiences that
would be very hard to digest and just adding another
dimension that is going on. You have got two lands of
traumas being built in, saying you can’t rely with all that
going on inside you, you can’t rely on the outside world
to let you go home, sleep in the same bed, or be nourished
by the same parents, or have a sense of care, being cared
for, well-being. You are going to have to fend for your
self.
An adult can feel abandoned but he has the strengths
often to cope with it, but putting the kid in another fam
ily, the same sense of bewilderment, only without the
development over time of those internal strengths which
permit dealing with those experiences.
Excerpts from Deposition of Joseph Goldstein
# * #
206a
Excerpts from Deposition of Joseph Goldstein
[ D e p o s i t i o n C o n t i n u e d o n M a y 13, 1975]
By Ms. Gans:
[44] Q. Professor Goldstein, I wanted to ask you, in
connection with the ideas propounded in your book, can
you cite any study on which you relied which did not
deal with infants or toddlers, at most, and does not deal
with institutionalized children? A. Not studies, only court
cases, of which we have seen a large number, and con
sultations.
Q. Those would be individual court cases that you con
sulted on or that Dr. 'Solnit consulted on? [45] A. Or court
cases where we read the transcript.
Q. Reported court cases? A. Yes, of course, we read
a number of case histories of children who are not in
fants.
# # #
[52] Q. Would you feel that the evaluations or re
ports of psychiatrists would be more reliable than that
of the social workers? A. Not necessarily. I make my
judgments about people with different training in terms
of the particular individual and what I learn about him
or her and their reputation and what I know about their
work. It is very hard to generalize, you get a good
garage mechanic and you get a bum. The same goes for
all professions.
=* * #
[53] Q. * * * In your opinion, a decision of a social
worker might be as valid and reliable as a decision of
a psychiatrist or a psychologist, A. An opinion of a
207a
Excerpts from Deposition of Joseph Goldstein
Excerpts from Deposition of Albert J. Solnit
good, sensitive social worker may be as good as an opin
ion of a good, sensitive psychiatrist.
* * *
[58] Q. On Page 57, you are talking about the Robert
son study? A. Yes. It was a study of four infants that
Mrs. Robertson fostered during short periods, while the
mother was in the hospital.
I think most situations involve giving birth to another
child.
Q. On Page 57, you testified that it was a very signifi
cant study even though it only dealt with four children?
A. Yes.
Q. You said on Page 57, I quote: “ We are talking
about peoples as individuals, not statistics, because sta
tistics don’t tell us very much.” I f the four children are
individuals and other children are also individuals, how
do we apply the findings from one set to the other?
* * *
[59] * * * You leave well enough alone. * * *
* * *
By Mr. Kantor:
[70] Q. Are you familiar with work of David Fanshel?
[71] A. No, I am not.
# * #
The deposition of A l b e r t J. S o l n i t , taken at the Child
Study Center, 230 South Frontage Road, New Haven,
Connecticut, on Tuesday, April 1, 1975, commencing at
7:30 o’clock p.m., pursuant to the Federal Rules of Civil
208a
Procedure, before Robert W. Merchant, a Notary Public
in and for the State of Connecticut.
Excerpts from Deposition of Albert J. Solnit
# * *
[3] Albert J. Solnit, being first duly sworn by the
Notary Public, testified as follows:
Direct examination by Miss Lowry:
Q. Would you give us your educational background af
ter college? A. Yes. I received my Masters of Arts De
gree in Anatomy at the University of California; an M.D.
Degree at the University o f California; and my Honorary
Masters at Yale University. I am a graduate—well, I
received full training in pediatrics and I am a member
of the American Academy of Pediatricts. I have full
training in general psychiatry and child psychiatry and
analysis; and I am a member of each of the professional
[4] associations which demonstrate that training or knowl
edge of this training.
* * #
A. I am the Past President, and this will indicate both my
association and my role, Past President of the American
Psychoanalytical Association; Past President of the Amer
ican Academy of Child Psychiatry; Past President of the
Association for Child Psychoanalysis; and am currently
President of International Association for Child Psychia
try and Allied Professions.
* # #
209a
A. I have authored or co-authored two hooks and edited
or co-edited two hooks, also.
* * *
A. They are about child development, child behavior, and
Beyond the Best Interests of the Child, which deals with
child development and placement of children and they
have had to do with psychoanalysis and general psychol
ogy and relationship between pediatrics, child develop
ment, and psychoanalysis.
Q. How many professional articles have you written?
[5] A. Over seventy.
Q. What do they deal with generally? A. They deal
with childhood, normative and deviant aspects of child
hood, crisis situations in childhood, deal with the roles
of the family and the raising of the child. They deal
with the way in which parents react to their children,
and children react to their parents. They deal with ac
cidents in childhood and the relationship of children to
their families and society.
Q. Can you tell us the major positions you have held
in your employment since you received your medical train
ing? A. I have been on the faculty at Yale University,
and now am Sterling Profession of Pediatrics and Psy
chiatry, and Director of the Child Study Center in New
Haven; on the faculty of the New York Psychoanalytical
Institute, and the Western New England Institute for
Psychoanalysis.
I am a training and supervising psychoanalyst in both
of those institutes.
I am a member of the Board of Human Services In
stitute for Child and Family Services; and I am a mem
ber o f a Committee of the National Research Council of
Excerpts from Deposition of Albert J. Solnit
210a
the National Academy of Science, which is concerned with
child and maternal health.
Q. Can you give us an estimate of how many children
you have evaluated and/or treated during your profes
sional career? [6] A. Well over two hundred.
* * * I imagine I would estimate that perhaps ten
per cent of the children I ’ve seen over the years
have been in foster care at one time or another.
I was a consultant to the Connecticut State De
partment of Welfare in terms of training foster
parents, providing in-service training for many
[7] years.
By Miss Lowry:
Q. Dr. Solnit, I believe you stated when you listed
your publications that you were one of the authors of
Beyond the Best Interests of the Child? A. That’s cor
rect.
* * *
[8] Q. Can you generally summarize the conclusions
in this book?
* * *
A. The conclusions in this book state that when a child
is in a situation in which there is a conflict about either
his custody or placement, we are not dealing with the
ideal alternatives, but already have reduced the alterna
tives for that child to where we would feel it would be
more accurate and precise to speak of the least detri
mental alternative, rather than to speak of the best in
terest of the child.
Excerpts from Deposition of Albert J. Solnit
211a
We feel that the criteria for what will help the court
or professional or enlightened person to decide what is
the least detrimental alternative, will he those guarantees
of the continuity of affectionate relationships that shall
be uninterrupted and be supported on a continuing basis,
that if there are [9] conflicts about placement that the
deliberations about these should take place according to
the child’s sense of time, that the judgments should be
made according to what represents the best information
about the best quality of life for the child in the immedi
ate present and future and not based on long-term pre
dictions. In our experience and in the literature it is clear
we have limited capacity for long-term predictions.
So on the conclusions, they are, if you can establish
continuity of affectionate interest and the guidelines, and
if you can make your judgment based on the child’s sense
of time, carefully but as quickly as meets that rhythm
of the child’s way of experiencing life, if you can be aware
o f our limitations in making long-term predictions and
be especially careful of the child’s life in the present and
the immediate future, we will be able to at least pro
vide the child with the least detrimental alternative.
Q. Upon what are your conclusions based? A. Those
are based on three major items.
One is deliberate studies— especially in the field of the
deprivation snydrome of childhood.
Secondly, on the literature that is indirectly or directly
concerned with what promotes healthy development.
And, third, from our own amassed clinical experience
in [10] the case of Dr. Freud going back to the early
1920’s, and in my case, going back more than twenty-
five years, in dealing with children in variety of settings
over this long period of time.
Excerpts from Deposition of Albert J. Solnit
* # *
212a
Q. Are you aware of any professional opinion within
your field either in the form of writings, or in the form
of seminars or professional meetings which support the
conclusions in this book?
* * *
A. Yes, I am. There are, of course, small pieces of litera
ture in ancient times that are summarized rather well
in The Century of Childhood, by Philip Avies, but in ad
dition, there are contemporary and modern studies which
are rigorously carried out in our field.
It starts out with The Rights of Infants by Mar
garet Ribbel, of Columbia, a monumental survey of all
the [11] world literature by John Bowby under the WHO
auspices, the studies of Anna Freud in Vienna and in
wartorn England, especially in regard to the children who
were taken care of by her staff in the Hampstead Nursery,
by the studies by James and Joyce Robertson, including
the film studies of Jane and John and two or three other
children. Going hack to their study of children in hospi
tals starting back more than ten years ago they have
studied a fairly large number of children intensively, and
by “ large number,” I mean perhaps up to a hundred
children, although not reported on each one, each of the
studies is based not only on a careful study of a small
number of individual children, but also on clinical experi
ence the two of them have amassed in England and about
which they have advised in other parts of the world.
It included studies by Rene Spitz, in South and Cen
tral America, as well as in other parts of the world in
cluding some of the children whose mothers were sent
to jail for crimes in the United States. It also included
the study of deprivation by Sally Provence and Rose
Excerpts from Deposition of Albert J. Solnit
213a
Lipton, the book titled Infants in Institutions. That study
was done in New Haven, and was a study that involved
upwards of fifty or more children, and over a five to seven
year period with a seven year follow-up.
And here one has to keep in mind that studies that
[12] substitute quantity for quality are simply misusing
statistics and insulting, I would say, anyone with aware
ness of the complexity of the statements.
* * *
By Miss Lowry:
Q. Dr. Solnit, based on your professional experience
and training, have you been able to form a professional
opinion with regard to the quality and nature of emo
tional bonds which can form between foster parents and
children?
* ♦ *
A. There are two major types of foster-child-parent re
lationships, those which are temporary and in which the
temporary nature of the placement, leads to a warm,
friendly attachment, but one which does not replace the
prior attachment that continues between the child and the
natural parents, especially and only if the natural parents
are enabled to make frequent contacts with their child
during the temporary placement.
Then there are those who are in long-term, so-called,
[13] foster placement away from their families and these
subdivide into two: Those in which they stay in one
home, foster home, for a long period of time, and we
in our own thinking have used the phrase, coined by Dr.
Goldstein, to think of these foster parents as having a
Excerpts from Deposition of Albert J. Solnit
214a
“ tenured relationship” since it goes on indefinitely for a
variety of reasons; and then there are those multiplicity
of placements in which the child goes from one to another
The nature of the relationship in the last two, the second
one which I called the “ tenured” foster parent-child rela
tionship, is a psychological relationship of primary nature
which gets established.
These children feel that this is my mommy and my
daddy, foster parents, and this is their home and they
build their lives on the basis of the daily contact, the
daily attachment, the daily feelings of love and sense of
protection, the sense of feeling wanted and feeling an un
qualified commitment from the parents. These are the
criteria for establishing what we call the psychological
parent that has been established and is maintained.
And those children who are long-term but live out child
hood in multiple placement, the nature of the relation
ship is tragic because with each subsequent attachment,
they are less able to relate to, to trust the world and the
parents, that represent their world.
* # *
Excerpts from Deposition of Albert J. Solnit
[14] A. I f the child has been from an early age in foster
placement for a short time and then goes on to another
for a short time and then goes on to another for a lengthy
time like a year or two, and then to another, it has a
permanent effect in terms of a loss of emotional, intellec
tual, and social capacities. We have studied some of these
and the loss appears to be permanent, narrowed or restric
tive repertoire of emotional responses to human situations
which ordinarily call for intense reactions and a wide
range of reactions, and they also seem to form rather
shallow attachments to other people. There is a lack of
215a
intensity of loyalty, a lack of a sense of permanence to
these relationships.
Q. Now, you’ve also described at the beginning of your
response to that question temporary foster care and dif
ferent attachments.
[15] From the last two types can you define what you
mean when you describe “ temporary” ? A. You are talk
ing about the first category?
Q. Yes. A. By that, that has to be defined accord
ing to the developmental achievement and capacity of
the child. Often for a shorthand we use the age, but
we mean the developmental period for the child, his toler
ance capacity, and his intolerance, so a child under two
I would consider any placement over two or three months
to be beyond that child’s tolerance to stay related and
to form an ongoing attachment to the person or persons
with whom they had been living prior to the placement.
For a child from two years to four, I would say three
or four months.
For a child under the age of six but older than four,
I would say perhaps six months. And I would say that
anything that goes beyond a year or eighteen months ex
ceeds the tolerance of any child to, and here I ’d define
child as anyone under the age of twelve, because I think
over the age of twelve we may be speaking of children
who are able to express more mature judgments to a sig
nificant extent about placement and attachment.
Q. When you were discussing these time periods with
the different developmental ages, would those be affected
if there [16] were some form of contact during those time
periods? A. Yes, they can be. Those time periods are
the maximums for expecting in the usual situation that
Excerpts from Deposition of Albert J. Solnit
216a
a child can retain the primary attachment but conditioned
on the basis, on the expectation or condition that the
condition is that the child should have frequent and regu
lar contact with the natural parent or the psychological
people he had before placement.
# # *
Excerpts from Deposition of Albert J. Solnit
Q. Now, with regard to the bonds that form between a
[17] foster parent and foster child which I think referred
to the situation in which the psychological parent rela
tionship is created— A. Yes.
Q. *—can you make any comparison between that psy
chological parent-child relationship, and the relationship
that exists between the child and natural parent who are
living together in an intact family? A. Yes. I would
say that the child who is in the foster home for a sig
nificant period of time so that a psychological child-parent
relationship is formed, is less well off than a child who
has remained continuously in the one home in which the
new, from the newborn period although it is the least
detrimental alternative—by that, I mean the child who
has not had to be moved into a second home is better
off because the permanence of the attachment and the
relationships served to provide them with a good basis
for their entire development of the childhood once, from
one home to another, already there is a risk that there
is a disruption of an attachment usually, and that means
that it is a disruption, it is a stress or challenge to the
child’s development.
However, it can be mitigated and reduced to minimum
by having an adequate substitute in terms of the replace
ment [18] parent who may be adoptive or, as we say,
the tenured foster parents.
217a
Q. Now, describe to as briefly the process whereby chil
dren develop emotional bonds with adnlts. A. In the con
text of being born helpless, the child forms very strong
attachments. As they unfold their capacity to perceive
and to recognize and to respond emotionally to these
people who feed them, bathe them, put them to sleep,
clothe them, protect them from the dangers of life on
a daily basis, an hourly basis, the relationship Starts with
a sense of being cared for totally by this adult when
the child is helpless. It gradually enables the child, to
become active in its own behalf. The physical dependency
is replaced by a love attachment, a dependency of a psy
chological nature which in the normative situation is
made up of love, of affection, expecting that parent to be
all-powerful and all-wise in providing for safety, for
nurturance and guidance. This includes being able to
tolerate the child’s anger and frustration and help the
child to deal with all of the conflicts and stresses of life
that are part of growing up and reaching an increasingly
mature level of capacity to understand one’s self, to un
derstand the world, and to find satisfaction in a world
that one has some influence on.
Q. How significant in this process is the fact of blood
[19] relationship between the adult and the child? A. It
is only of vital importance when that blood relationship
becomes transformed into the psychological relationship
and then because that mother and father feel a close at
tachment preceded initially in the pregnancy with the
expectation of a child and watching and feeling as the
mother goes through her pregnancy and labor and de
livery and preparing for psychological attachment. They
have an advantage and in this sense the blood tie is ad
vantageous in enabling the person to form the psycho
logical relationship.
Excerpts from Deposition of Albert J. Solnit
218a
However, the blood relationship is no guarantee of an
adequate parenting capacity or that the psychological at
tachment will form if a variety of either accidental or
nonaccidental events take place that interrupt that rela
tionship or distort or dwarf it.
Q. What do you mean by—can you list the events to
which you are referring? A. Yes. For example, if a
mother becomes ill and has to be hospitalized for the ill
ness, no matter how well motivated she is, how much
she loves the child, if she is hospitalized, the child is
deprived because she must be in the hospital and then
there is no psychological attachment forming between the
mother and the child.
[20] Or if the two parents are killed accidentally when
the child is two months of age, which we have seen, in
an automobile accident, that child has no psychological
relationship to the blood or natural parents, and indeed
the child’s chances for a sound development is based on
the opportunity to form the kind of attachments I have
described before to another set of parents.
# # *
Excerpts from Deposition of Albert J. Solnit
[21] Q. With regard to a nonbiological parent during
what period of times are sufficient relationships likely to
come into existence with regard to different developmental
stages of children?
* * #
[22] A. We would expect that in the first two years of
life an attachment would begin within a three-month pe
riod, and have a fairly significant and active effect. We
would think that as the child grows it takes longer be
cause as the child is less helpless and begins to use their
219a
own self-starting capacities, they take longer to form the
dependency that is part of the attachment to these foster
parents.
So under six years of age it may take six months and
if the child were eight or ten years of age it might take
nine months. But it isn’t something that you can say,
it’s not here today, but it’s here tomorrow. * * *
However, because we must try to preserve the child,
we arbitrarily say, well, by now the attachment is sig
nificant, even though it has been occurring very gradually
and made up of repetition, patterns of care and satis
faction, and gradual crystalization of relationships, as
a result of these common concerns in which the mutual
needs of the child and the adult are met by this kind of
parent-child interaction.
Q. Does the passage of time have any further effect on
the existence of these bonds?
# * *
[23] Yes, passage of time may insure the attachment,
if it is a steadily dependable one. The child’s expectations
and attachments deepen broadly and now become what
we call permanent in the sense that the child expects
them to go on as long as necessary to enable him to
grow up to be independent and capable of starting their
own family or friendships or own social groups.
Q. What effect does it have on the child to remove him
from the home of an adult or adults with whom he has
formed these psychological bonds? A. I f it is a very
short-lived move, and if the psychological parent or par
ents stay in touch with the child, it may have a temporary
effect of being depressing and upsetting to the child.
Excerpts from Deposition of Albert J. Solnit
220a
But if the child is taken out of the home suddenly for
a long period of time beyond their tolerance of being
able to remember or to feel the security of the previous
parents, it has a devastating effect.
We have studied child after child in which this devasta
tion registered, a loss of developmental progress that can
be quantified within the area of speech, in the area of
motility, in the areas of skills and competence.
[24] So no one should allow himself to take a child
out of a home where there is a psychological relationship
without knowing that there is a devastating effect espe
cially if there is not an adequate replacement provided
immediately for the young child, according to the child’s
sense of time and tolerance and, of course, for the older
child proportionately so.
Q. Would this effect be likely to become compounded
if this was two or three times that this was done? A.
I f one could put it in mathematical terms, it would be
of geometric proportions. After three or four times, in
most instances, the child doesn’t try any longer to relate
or please the adult or to form a warm attachment. They
settle for a mechanical way of getting along.
Q. Would the effect be negative on the child if the child
moves from one home in which he had formed a psycho
logical relationship for some duration to another home
with a second set of foster parents who were decent and
adequate, would that affect how the child would react to
the separation?
* * *
Excerpts from Deposition of Albert J. Solnit
[25] A. It does have an effect because it means losing
one set of parents and having to deal with the loss and
simultaneously and noAV beginning to get familiar with
221a
an attachment to strangers. Gradually it can be over
come but if there are too many moves, no matter how
adequate the foster home is, there is a permanent loss of
human capacities according to our study and experiences.
Q. Would the loss be mitigated in the place to which
the child were going to be moved, if it were from a home
in which he formed psychological relationships with the
adult, would that effect be mitigated in the child if it were
going back to the natural parents? A. It would be miti
gated to some extent in the relationship with the natural
parents, if there had been frequent and regular visits by
the natural parents, although there is still, as we can see
in many of the studies, there is still the period of time in
which the child loses ground and has an unstable period,
and is more vulnerable to trauma.
But the mitigation is that they do return to parents
with whom they have maintained a relationship and, there
fore, some of the former psychological relationships be
come available to them in promoting their development
and, therefore, it is mitigating.
[26] The reason I am being careful is, I don’t want to
give the impression there is no effect.
Q. What if the return to the natural parent takes place
after the period during which you had defined as tem
porary foster care at the beginning of your testimony?
A. We have seen in the Robertson report instances where
if you exceed the child’s tolerance for that period of sep
aration, that they have a very storm, difficult period.
Some of them recover a great deal and some seem never
fully recovered. Let’s say if it goes four or five years
and only see their natural parents once every six months,
there is in those instances a permanent loss from what
we can measure in regard to clinical, psychological, and
developmental assessment.
Excerpts from Deposition of Albert J. Solnit
222a
Q. With regard to what you consider to he the least
harmful consequence to a child, do you have an opinion
on a process whereby the child is removed from a home
in which he has formed psychological ties during the pe
riod in which the decision to remove is still under re
view and which may result in reversal of the decision to
remove? A. Yes. As few moves as possible are best for
the child. I f he is in a stable situation, it is better not
to move the child until the decision is made.
We have seen time after time in this state, in Vir
ginia, [27] in North Carolina, where we have been con
sulted, where they move the child away from the foster
parents in most instances, and these instances these chil
dren have been with the foster parents in each one of
these instances more than a year, these are younger chil
dren, move them into a neutral home (which can hardly be
so from the child’s point of view) pending the decision.
During that period there is such an erosion of the child’s
developmental capacity. There is such as a sense of dis
trust and hurt, the world is alien and threatening, that
these children have a difficult time when they return to
the former foster home.
We have studied a small number intensively, and I think
we have finally won over some of our own welfare peo
ple. They no longer do that invariably in this area.
Q. Do you have an opinion on the effect on children
of moving them to a neutral foster home when there is
a possibility sometime in the future of a return to natural
parents, or the purpose of the move being to keep ties
from developing too strongly in the substitute home?
Excerpts from Deposition of Albert J. Solnit
* # #
223a
[28] A. Yes. We have seen it happen repeatedly when
an agency decided that they must interfere with what
they consider to be a [29] too close attachment between
the foster parent and child. * * *
In those instances, the child suffers a great deal be
cause they are put into a home which knows they are
only there for a short period of time and they don’t know
whether they are going back to the previous home or to
some other home.
Excerpts from Deposition of Albert J. Solnit
* #
I am only trying desperately to explain if they don’t
start seeing the child’s point of view they are going to
damage the child even though the concern of the agency
is not that. The agency must be emphatic from the child’s
point of view.
Q. Have you been able to form a judgment with re
gard to whether children are capable of having desires
and opinions about wdiere they want to live? A. Yes, we
always carefully in play therapy and in interviews and
in our history try to get a factual inquiry about what
the child would prefer. We make it clear the child is not
burdened with the decision, so if they express a wish they
are not putting themselves into a loyalty conflict.
[30] The situation is the responsibility of the custodial
adult or those who have been asked by the agency to make
the decision on legal grounds.
So we always take into account the child’s preference
and more often than not in the child’s preference is a
very important lead as to where the psychological attach
ment is.
224a
However, it requires interpretation, it often can’t be
checked with straightforward questions and answers. * * *
* * *
[31] Q. * * * I f I told you that the New York law has
a procedure for full administrative review of decision on
removal of a child from a foster home subsequent to the
time that the [32] removal actually takes place for it?
A. Not prior to, but before?
Q. Subsequent to and for the purpose of determining
whether or not the removal should have taken place, would
you have any opinion about the psychological implica
tions of that procedure on the children affected by it?
A. Yes, I would. I think any such review process that
takes place after the child has been removed is a travesty
on the need of the child that the child should not be
removed unless there are grounds for removal, on the
basis of abuse or neglect. But absent those factors, I
see no reason from the point of view of the child’s best
interest to carry out such a review process after the
removal.
In fact, it exposes the child to unnecessary risks of
multiple placement and such arrangements must have a
connection with what an adult needs to do, but it is con
trary to the best interest of the child.
Q. I f I told you the foster parent role has been ar
ticulated as that of a custodian to care for the child over
a period of several years, and then willingly and with
out objection return the child, the agency, when the agency
determines that is what should happen, based solely on
the agency’s determination, would you have an opinion
with regard to how psychologically realistic [33] this is
with regard to the foster parents? A. First of all, if
Excerpts from Deposition of Albert J. Solnit
225a
foster parents accept that knowing it will take place in
several years and are then required to return the child
at a point where the agency thinks it is desirable, such
foster parents are at risk themselves of changing their
minds as they become attached to the child because they
will, if they are having the experiences that most parents
have, they will realize that a child of theirs is being taken
away. We have such people coming to us to try to
find help as they come and ask for help in changing an
agreement because they realize it is a painful injury to
themselves and even more so to the child especially as
in some instances there have been no visitations or almost
none, but occasional postcards or occasional gifts from
the absent parent, and I don’t mean to imply that the
natural parent is necessarily a person who has a poor
motive to the children. The removal may be because
of illness or other circumstances I have outlined.
From the child’s point of view, that is psychological
abandonment, and that abandonment situation was taken
care of by being attached to the foster parents on a long
term basis and from the child’s point o f view, it is deva
stating.
Q. From the child’s point of view, what effect is such
a policy likely to have? [34] A. It has a devastating ef
fect on the child. In the most dramatic instances, we hear
of them being torn out of the foster parents’ arms and
given to the natural parents and we know of others from
our consultations and our own experience clinically here,
which go far beyond my individual experiences, the Di
rector of the Center, I hear of most of the cases here. And
since we treat upwards of five hundred children a year, it
means we have broad experience of how children react.
They are devastated, they wonder what has happened
to the world, and it is full of frightening possibilities
Excerpts from Deposition of Albert J. Solnit
226a
that something like this will happen again. They fight
to stay with the foster parents who from their point of
view often are really their only mother and father.
Q. Have you had any experiences either directly or in
supervision of children being seen, with agency decisions
either locally or anyplace, child care agency decisions,
removing the children from the foster home with which
you disagreed? A. Yes, I can cite instances, many of
them in Connecticut, but also in New York and North
Carolina, in particular, and in Pennsylvania.
Q. Do you have any, based on just the cases that you
have seen, do you have any opinion with regard to how
many agency decisions to remove children are contrary
to the children’s [35] interests?
* * #
A. I cannot give you a good answer to that because those
that are called to our attention are those where the agency
has made an error. I don’t know what percentages of
instances that would he.
* * *
[36] Q. Doctor, let me give you a hypothetical and see
whether [37] or not you can come to any substantive con
clusion with regard to whether it is in the child’s interest
to be removed from the situation.
Take a situation in which a sister and brother nine and
six years old have lived with the foster mother for four
and a half years. The natural parent either legally sur
rendered or abandoned the children and has not seen them
in any case during the period.
Excerpts from Deposition of Albert J. Solnit
227a
The foster mother was a woman of fifty-three and with
arthritis, possibly she either does or does not get around
her house as well as someone without arthritis would,
but there is no allegation that she could not physically
care for the children or that the children were not devel
oping normally emotionally.
* * *
Excerpts from Deposition of Albert J. Solnit
And the purpose of the removal is to put the children
into a group home with the possibility of adoption for
the younger child and continued foster care for the older
child? A. In another foster home?
Q. Yes. Do you have an opinion with regard to whether
or not the removal should have taken place based on the
facts I ’ve given you ? A. There is only one question. This
foster mother was [38] positive about keeping the chil
dren?
Q. Very much so. A. I think it is an incredible cruelty
that has been imposed on these children because from
their point of view this mother was their mother and is
their parent and they are being taken away, being kid
napped, in a sense, and the fact that it is legally so, is
no less violent than any other kidnapping, and the state
should not do it.
Q. Just one other hypothetical of a situation of an
eleven year old boy in foster care five and a half years
with the same foster family, originally taken from his
natural parents at a point at which an abuse petition was
going to be filed against the parent with regard to the
entire sibling group, and in which the allegations of abuse
were substantial and—
** *
228a
At the time he came to the foster care was while he was
on his way to state institutions and he has remained with
the foster family for five and a half years and the foster
family does not want to legally adopt the child because
they are philosophically opposed to it, but they want the
child to remain [39] with them as if he were adopted and
seek legal guardianship for the child.
Do you have an opinion with regard to the removal of
the child from that foster home? A. Yes, I do.
Q. What is that? A. It would be contrary to the best
interests and what I hope to be the rights of the child to
not be allowed to remain in a home where he feels wanted,
where he feels that he is now related on a primary basis
to that mother, and she to him, or he to the parents, and
so forth, and that again he is to be subjected to some kind
of manipulation by the state. In fact, I consider it in a
sense an intrusion into the privacy of that family under
those circumstances, trying to take a child away or sug
gested in that hypothetical case.
Mrs. Gans: I would like to note this objection
for the record. Miss Lowry, by way of the hypo
thetical question, has presented her version of the
facts of two plaintiffs.
The Witness: These are hypothetical questions
only, and that’s the reason I referred to them in the
hypothetical.
# * #
Excerpts from Deposition of Albert J. Solnit
[40] Q. And, Doctor, I am only asldng you to answer
with regard to the facts that I am stating to you on the
record, and the last hypothetical situation is a situation
of four siblings, four sisters presently 12, 11, 9, and 8,
all four children in foster care four and a half years.
229a
The two oldest children were with foster families two
and a half years; the two youngest children in one foster
home for two years, and in the same foster home as their
older sisters for two and a half years.
The natural parent is visiting sporadically during the
four and a half year period, the children’s reaction of the
visiting being very infrequent and periods of time amount
ing up to a year of no visiting at all, of the children
remembering instances of serious neglect prior to place
ment and the children stating that they absolutely do not
want to ever leave the foster home or have anything to
do with the natural mother or visit with her.
Now, the foster parent is seeking to keep the children
with them. Do you have an opinion with regard to that
situation ?
# * #
[41] A. With such infrequent visits over a four-year
period, no one of those children could have retained a
primary tie to the mother, the natural mother, if the
foster placements even those two in each group were
adequate, it certainly fits our harsh reality of the least
detrimental alternative and it would be a violation of
those children’s needs and rights to take them out of the
foster home in which they are and return them to the nat
ural mother, however well motivated she may be and how
ever much she may now be capable of not neglecting the
children.
Excerpts from Deposition of Albert J. Solnit
* # *
[52] And you reached a conclusion, did you not, that a
psychological parent-child relationship, a new one, would
begin to form for a child less than two years at a three-
month placement, and for a child less than six years at
230a
six months, and for a child between eight and ten at
nine months.
Can yon tell me how it was that you arrived at those
particular figures, and those particular ages? A. Those
are estimates. This is not something you can determine
with mathematical precision. It’s a manner of speaking,
and it’s a way of talking about how a child’s memory
serves the child, to keep alive the attachments, the feel
ings, the sense and [53] presence of those people, the
parents who have been connected with an in care of the
child, and it’s a way of estimating the length of time it
takes for the same children, in these different ages, to
begin to know and have a sense of the new people to
whom they are attached.
I wouldn’t put much weight on the actual figures; those
are really estimates.
Q. On what did you base those estimates? A. Well,
I based the estimates on the fact that in cognitive, the
knowledge about cognitive psychology, for example, until
a child is about nine or ten years of age, they don’t have
the ability to conceptualize performance, they don’t have
the ability to conceptualize some aspects of time, which
you have to do with the life span, Avhereas a child under
the age of two has no way of being able to estimate time
beyond a day or two at a time; and then I put into it
the estimate of what a school-age child would know in
terms of conceptualizing the calendar, how they would
be able to discuss their separation from parents, and it’s
that kind of information, both from clinical and from
Piagetian cognitive psychology that enables a clinician to
form such judgments, estimates, I would say.
# * *
Excerpts from Deposition of Albert J. Solnit
231a
[104] Attachments are formed much more quickly and
indiscriminately in the first few weeks of life than they
are, let’s say, by the time the child is eight or nine or ten
years of age, where a whole host of experiences, of de
velopmental capacities to differentiate, to think, to re
member, to initiate, to influence their environment with
their own behavior now make them much more of a par
ticipant and much less of a passive party to the attach
ment relationship, and so as their sense of time moves
toward the adult sense of time, their capacity to attach
themselves to new people or to give up old attachments
moves toward the same character—moves towards the
adult characteristic ways of dealing with the loss of im
portant individuals and the [105] formation of new at
tachments.
It ’s not precise, I use the word “ associated with” be
cause I don’t think there is a point for point relation
ship, but there is a pattern relationship, as you move from
one developmental period to another.
By Mrs. Gams:
* * *
Q. * * * [0]nce memory persists, what function can
memory alone play in survival of attachments, and then
how is it different from memory with some contact?
A. Well, under the age of four or five, memory is not
a very strong ally in being able to retain broken attach
ments or the loss of a person that’s been important to
the child. They may remember quite clearly who the
person is, but the memory is not a sufficiently—does not
represent a sufficient replacement for the presence, the
physical presence of the person for a young child.
A young child needs the physical presence, as well as
the psychological presence of the adult in order to feel
Excerpts from Deposition of Albert J. Solnit
232a
safe and protected and nourished and guided and stimu
lated.
So although the memory may get to a point of four or
[106] five where they can remember the person over a
year or two-year period, that is not a sufficient replace
ment for the missing person. When you are fourteen or
fifteen, the memory and its meaning to you, your ability
to use it to guide you and to reassure you and to give
you a sense of a presence, is much more important in the
functioning of the child and, therefore, the older child,
the teen-ager, can tolerate the absence and may not need
as immediate and total a replacement, but at the same
time, the teen-ager is now able to contribute much more
to the decision by being articulate, logical, realistic and
able to present a point of view, if they have one, that
will influence and should influence the decision maker
more than the wish or preference of the four year old.
# * #
[110] Q. I ’m coming to a next question. Are you say
ing that if that is so, and contact is maintained, and then
at the end of a year, let’s sa}r, you would not—you would
want that child returned without weighing the relation
ship that’s formed with the foster parent? A. You’re
now citing a different case?
Q. Yes. A. A child who is how old?
Q. Seven. A. Seven, who lives for a year in a foster
home, and is visited frequently by the parents?
Q. Well, let’s just say the maximum permitted by the
agency regularly. A. Which is what?
Q. It’s every week, every two weeks. It varies. A.
And the plan was for the child to return to the father?
Q. Yes.
* # *
Excerpts from Deposition of Albert J. Solnit
233a
Miss Lowry: You’re asking if there should be
an [111] automatic return, is that essentially your
question!
Mrs. Gans: Yes.
A. I wouldn’t see why the child shouldn’t be returned to
the father if no one objected. * * *
* * #
[117] A. As a psychiatrist and psychoanalyst, if I were
asked what would be in the best interests of the child,
vis-a-vis that question Mrs. Gans has raised, I would say
that before a child is moved from where they are living
and forming attachments, if there is some question that
needs to be resolved, it’s best to resolve it before the child
is moved, although you will realize that there is another
guideline in this that must be followed if that—if the
recommendation I have made is to make sense, and that
is that the hearing must be immediate and it must be
respectful of the child’s sense of time so that there is no
lengthy delay, because children do not tolerate delay,
especially young children such as a four year old.
Therefore, if someone has something to say, which might
hold up the decision, I prefer not to move the child until
that’s been clarified, but it should be clarified immedi
ately.
* # *
Q. * * * When a child comes into placement, in your
opinion, an agency should never tell a parent that they
can assure the child’s return? [118] A. Well, I would say
they can say within reasonable limits, we can assure your
child’s return, if the following conditions and plan are
Excerpts from Deposition of Albert J. Solnit
234a
carried out, but they should certainly be able to say also
to foster parents, if something—
Q. To the parents. A. To the parents, to the natural
parents, if something different happens, if the plan is not
carried out, then one would have to look at the situation
in light of the changes, and I would assume that one can’t,
you know, predict exactly what’s going to happen in a
six-month period. One can predict pretty much what may
happen, or one could make a good plan and one could do
what one can do to assure the successful execution of the
plan.
Q. But let’s say the plan has been carried out, you still
would want the foster parent to be able to stop the re
turn of the child? A. I didn’t say that.
Q. What do you mean? A. I said if there is a conflict,
then I would like that conflict resolved before the child is
moved. That’s all I said. And with great respect to the
child’s sense of time.
* # #
[120] Q. When you say that temporary foster care un
der no circumstances could last more than eighteen
months, aren’t you, in fact, selecting time as a criteria
above all others? A. No, not really, because there was a
built-in assumption in that line of questioning that there
—where there was no visit, there is no contact between
the child and the parents, and to say that we can make
time the overarching guideline would be to leave out the
fact that we put aside time problems if we can maintain
through visitation and through frequent contacts the con
tinuity of the relationship. *
Excerpts from Deposition of Albert J. Solnit
*#
235a
[121] Q.* * * But then you are not saying that time
alone determines whether a child in a foster home forms
a psychological parent-child relationship and time alone
does not determine whether a preexisting parent-child
relationship is destroyed? A. Passage of time in itself is
only one dimension. It is a very important one, but there
are other dimensions, as well.
* • #
[126] Q. * * * [at] page 22 of Beyond the Best Inter
ests of the Child there is a statement that legal adoption is
no guarantee that the adopting adult will become the
psychological parents, and I wonder if you could expand
on that? A. Yes. What we are saying is that putting
two people into physical proximity doesn’t guarantee the
establishment of psychological ties. It depends on the mo
tivation of the parents, the needs of the child, and in the
older child, the motives of the child; so the process of
establishing a psychological tie is one in which there is
a mutuality of the child’s needs and responses to the
adult’s expectations, and care, and if they are not moti
vated toward establishing that pattern of relationship,
then the psychological ties will not be established.
We simply want to make the point that there is a pro
cess, and it’s not a matter of physical apposition. *
* * *
Excerpts from Deposition of Albert J. Solnit
236a
E xhibit # 1
H e n r y U l m a n n G r u n e b a u m , M.D.
Bom June 5, 1926, New York City
1943-48 A.B., cum laude, Harvard College
1948-52 M.D., emu laude, Harvard Medical School
1952- 53 Intern in Medicine, Beth Israel Hospital Boston,
Massachusetts
1953- 55 Resident in Pediatrics, New York Hospital
1955-57 Resident in Psychiatry, Massachusetts Mental
Health Center, Boston, Massachusetts
1957-59 Fellow in Child Psychiatry, Boston City Hospital
Child Guidance Clinic
1957-59 Visiting Physician in Pediatrics, Boston City
Hospital
1959- 60 Resident in Psychiatry, McLean Hospital, Wav-
erly, Massachusetts and James Putnam Child
Guidance Clinic, Boston, Massachusetts
1960- 65 Senior Psychiatrist, Massachusetts Mental Health
Center
1960-67 Staff Psychiatrist, James Jackson Putnam Child
Guidance Clinic
1960-62 Assistant in Psychiatry, Harvard Medical School
Exhibit No. 1, Resume of Henry Ulmann Grunebaum, M.D.
237a
1962- 63 Instructor in Psychiatry, Harvard Medical School
1963- 68 Clinical Associate in Psychiatry, Harvard Medi
cal School
1963-67 Director, Joint Admission and Child Development
Study, Massachusetts Mental Health Center
1965- 67 Resident Education Director, Laboratory of Com
munity Psychiatry, Harvard Medical School
1966- 67 Psychiatrist, Tunisia Peace Corps Project Wheel-
ock College, Boston, Massachusetts
1967- Senior Psychiatrist and Supervisor, Southard
Clinic, Massachusetts Mental Health Center
1967- 72 Director, Intensive Nursing Aftercare for Psy
chotic Mothers, NIMH Grant, Massachusetts Men
tal Health Center
1968- 71 Assistant Clinical Professor of Psychiatry, Har
vard Medical School
1968-69 Lecturer, Boston University School of Theology,
Boston, Massachusetts
1968- Senior Psychiatrist in Family and Group Therapy
Cambridge Hospital, Cambridge, Massachusetts
1971- Associate Clinical Professor o f Psychiatry Har
vard Medical School
1972- Director, Center for Studies in Population and
the Family, Health, Education & Welfare Grant
Exhibit No. 1, Resume of Henry Ulmann Grunebaum, M.D.
238a
Membership
American Group Psychotherapy Association
New England Council for Child Psychiatry
Group for the Advancement of Psychiatry
American Orthopsychiatric Association-Fellow
Examiner, National Boards o f Neurology and Psychiatry
President, Northeastern Society for Group Psychother
apy, 1970-72
Society for Family Therapy and Family Research
Book Review Editor, International Journal of Group
Psychotherapy, 1971-
Govemor’s Advisory Council on Home and Family
American Psychiatric Association—Etides Committee
National Board—American Group Psychotherapy Assoc.
Publications
1. Altschule, M.D., Grunebaum, H., and Promisel, E :
Significance of Changes in Extracellular Fluid Vol
ume During Insulin Therapy for Mental Disease.
Journal of Aplied Physiology. 2:477-480, 1950.
2. Grunebaum, IT. and Altschule, M.D.: Sodium Concen
tration of Thermal Sweat in Treated and Untreated
Patients with Mental Disease. Archives of Neuro
logy cmd Psychiatry. 63:641-649, 1950.
3. Altschule, M.D., Promisel, E., Parkhurst, B.H. and
Grunebaum, H : Effects of ACTH in Patients with
Exhibit No. 1, Resume of Henry Ulmann Grunebaum, M.D.
239a
Mental Disease. Archives of Neurology and Psychia
try. 64:641-649, 1950.
4. Altschule, M.D. Gruenbaum, H., Parkkurse, B.H. and
Siegel, E .P .: Mobilization of Glucose by Phlorhizin
in Patients with Mental Disorders. Archives of Neu
rology and Psychiatry. 70:235-239, 1953.
5. Grunebaum, H., Freedman, S., and Greenblatt, M .:
Sensory Deprivation and Personality. American Jour-
nal of Psychiatry. 116:878-882, 1960.
6. Freedman, S., Grunebaum, EL, and Greenblatt, M .:
Perceptual and Cognitive Changes in Sensory De
privation. In P. Solomon et al (Eds.) Sensory Depri
vation, Harvard University Press: Cambridge, Massa
chusetts 58-71, 1961.
7. Freedman, S., Grunebaum, EL, Stare, F., and Green
blatt, M .: Emagery in Sensory Deprivation. En L.J.
West (Ed.) Hallucinations. Grune and Stratton, Enc.,
New York 108-117, 1962.
8. Grunebaum, H .: Group Psychotherapy of Fathers:
Problems of Technique British Journal of Medical
Psychology. 35:147-154, 1962.
9. Grunebaum, EL, Weiss, J., Hirsch, L., and Barrett, J . :
The Baby on the Ward. Psychiatry: Journal for the
Study of Interpersonal Process. 26:29-53, 1953.
10. Grunebaum, EL, and Weiss, J .: Psychotic Mothers
and Their Children: Joint Admission to an Adult
Psychiatric Hospital. The American Journal of Psy
chiatry. 119:927-933, 1963.
Exhibit No. 1, Resume of Henry TJlmann Grunebaum, M.D.
240a
11. Weiss, J., Grunebaum, H., and Schell, R .: Psychotic
Mothers and Their Children, I I : Psychological
Studies of Mothers Caring for Their Infants and
Young Children in a Psychiatric Hospital. Archives
of General Psychiatry. 2:90-98, 1964.
12. Grunebaum, H., and Strean, H .: Some Considerations
on the Therapeutic Neglect of Fathers in Child Guid
ance. The Journal of Child Psychology and Psychia
try. 5:241-249, 1964.
13. Grunebaum, H., and Weiss, J .: Joint Admission of
Mother and Child: A context for Inpatient Therapy.
In Jules H. Masserman (ed.) Current Psychiatric
Therapies. New York: Grune and Stratton, Inc. 164-
171, 1965.
14. Grunebaum, II., and Bryant, C .: The Theory and Prac
tice of the Family Diagnostic. Psychiatric Research
Report 20. 140-162, Feb. 1966.
15. Roemele V., and Grunebaum, I I .: Helping the Helpers.
Internatio'nal Journal of Group Psychotherapy. 17:
343-356, 1967.
16. Golwyn, R., Cahill, J., Grunebaum, H .: Self-Inflicted
Injury to the Wrist. The Journal of Plastic and Re
constructive Surgery. 39:6, 1967.
17. Grunebaum, H. and Klerman, G .: Wrist Slashing.
American Journal of Psychiatry. 124(4) :113-120,
October, 1967.
Exhibit No. 1, Resume of Henry Ulmann Grunebaum, M.D.
241a
18. Fasman, J., and Grunebaum, H., and Weiss, J .: Who
Cares for the Children of Psychotic Mothers? British
Journal of Psychiatric Social Work. November, 1967,
Y 9:2, 84-99.
19. Van der Walde, P., Meeks, D., Grunebaum, H., and
Weiss, J .: Joint Admission of Mothers and Children
to a State Hospital. Archives of General Psychiatry.
18:706-711, 1968.
20. Dupont, R., and Grunebaum, H .: The Willing Vic
tims: Husbands of Paranoid Women. The American
Journal of Psychiatry. 125:2: 151-159, 1968.
21. Caplan, G., Grunebaum, H .: Perspectives on Primary
Prevention: A Review. Archives of General Psychia
try. 17:331-346, Sept., 1967.
22. Colder, B., Woolsey, S., Weiss, J., and Grunebaum,
H .: Childbearing Attitudes Among Mothers Volun
teering and Revolunteering for a Psychological Study.
Psychological Reports. 23:603-612, 1968.
23. Beck, J., Buttenweiser, P., Grunebaum, H.: Verbal
Therapy for the Non-Verbal. International Journal
of Group Psychotherapy.
24. Bloch, S., Minker, B., and Grunebaum, H .: The Ac-
companier. The Psychiatric Quarterly Supplement.
42:508-530, 1968.
25. Grunebaum, H., and Christ, J .: Interpretations and
the Tasks of the Therapists with Couples and Fami
lies. International Journal of Group Psychotherapy.
18: 495-503, October, 1968.
Exhibit No. 1, Resume of Henry TJlmann Grunebaum, M.D.
242a
26. Grunebaum, H., Christ, J., and Neiberg, N .: Diag
nosis and Treatment Planning for Couples. Interna
tional Journal of Grou/p Psychotherapy. 19:185-202,
April, 1969.
27. Van der Walde, P., and Grunebaum, TI.: Joint Ad
mission of Mothers and Children to a State Hospital.
In Jules II. Masserman (ed.) Current Psychiatric
Therapies, New York, Grune and Stratton, Inc.
9:175-178, 1969.
28. Aledort, S., and Grunebaum, H .: Group Psychother
apy on Alien Turf. Psychiatric Quarterly. July, 1969.
29. Grunebaum, I I .: Book Review: “ The Drifters and
“ Families of the Slums” . Harvard Educational Re
view. 39:394-398, November, 1969.
30. Finesinger, Joseph. Edited by Grunebaum, H .: Case
Reports of the Masschusetts Mental Health Center,
#17—“ Treatment of a Family Problem.” Psychiatric
Opinion. 6:39-41, December, 1969.
31. Grunebaum, H. (ed .): The Practice of Commimity
Psychiatry. Little Brown and Company, Boston, Mas
sachusetts, 1970.
32. Cohler, B., Weiss, J., and Gruenbaum, H .: Child-Care
Attitudes and Emotional Disturbance Among Mothers
of Young Children. Genetic Psychology Monographs.
82:3-47, 1970.
33. Nelson, S., and Grunebaum, H .: A Follow-Up Study
of Wrist Slashers. American Journal of Psychiatry.
127:1345-1349, April, 1971.
Exhibit No. 1, Resume of Henry Ulmann Grunebaum, M.D.
243a
34. Grunebaum, H .: Book Review: “ Mental Health and
Social Policy” by David Mechanic. Psychosomatic
Medicine. 33(2): 191-192, 1971.
35. Cohler, B., Grunebaum, H., Weiss, H., and Moran, D .:
The Childcare Attitudes of Two Generations of
Mothers. Merrill Palmer Quarterly of Behavior and
Development. 17: 3-17, 1971.
36. Grunebaum, H., Weiss, J., Cohler, B., Gallant, D., and
Hartman, C .: Mentally 111 Mothers in the Hospital
and at Home. In the New Hospital Psychiatry. G.M.
Abroms and N.S. Greenfield (Eds.) New York; Aca
demic Press, 1971, pp. 159-174.
37. Grunebaum, H., Abernethy, V., Rofman, S., and Weiss,
J . : Bases of Contraceptive Practice in Mental Pa
tients. Presented at the annual meeting of the Amer
ican Psychiatric Association in Washington, D.C.,
May, 1971. Published in American Journal of Psy
chiatry, 1971, as “ Family Planning Attitudes, Prac
tices and Motivations of Mental Patients”, 128:6,
December, 1971.
38. Grunebaum, H., Christ, J., and Neiberg, N.: Marital
Diagnosis for Treatment Planning. In Jules Masser-
man (Ed.) Current Psychiatric Therapies. New York:
Grune and Stratton, Inc., 1971.
39. Gamer, E., and Grunebaum, H .: Fathers and Chil-
dren-Compensating for Maternal Psychosis. Pre
sented at annual meeting of the American Psychiatric
Association, San Francisco, May, 1970.
Exhibit No. 1, Resume of Henry TJlmann Grunebaum, M.D.
244a
40. Dupont, R., and Grunebaum, H .: “ An Unexpected
Result of Psychosis in Marriage” . Presented at an
nual meeting of American Psychiatric Association,
Washington, D.C., May, 1971. Published in American
Journal of Psychiatry. 218: 735-9, December, 1971.
41. Nelson, S., and Grunebaum, H .: Ethical Issues in
Psychiatric Follow-Up Studies. American Journal of
Psychiatry. 128:11, 358-362, May, 1972.
42. Cohler, B., Weiss, J., Grunebaum, II., Lidz, M., and
Wayne, L .: “ MMPI Profiles in Hospitalized Psychi
atric Patients and Their Families” , Archives of Gen
eral Psychiatry. Vol. 26, January, 1972.
43. Grunebaum, H., and Sharfstein, S .: Physicians as
Professionals: Obligations and Commitments, Medi
cal Dimensions. November, 1972, p. 44.
44. Abernethy, V., and Grunebaum, H .: Toward a Fam
ily Planning Program in Psychiatric Hospitals.
American Journal of Public Health, 62(12): 1638-
1646, December, 1972.
45. Grunebaum, H., and Perlman, M.: Paranoia and
Naievte. Archives of General Psychiatry. 28(1):
20-32, 1973.
46. Grunebaum, H .: Psychotherapy During the Thera
pist’s Recovery From an Injury. Psychiatric Opinion,
October, 1973.
47. Abernethy, V., and Grunebaum, H .: Family Planning
in Two Psychiatric Hospitals.—A Preliminary Report.
Exhibit No. 1, Resume of Henry Ulma/nn Grunebaum, M.D.
245a
Family Planning Perspectives, 5 (2 ): Spring, 1973,
94-99.
Exhibit No. 1, Resume of Henry TJhnann Grunebaum, M.D.
48. Cohler, B., Weiss, J., and Grunebaum, H .: ‘Short
Form’ Content Scales for the MMPI. Journal of Per
sonality Assessment, Vol. 38(6): 563-572, 1974.
49. Cohler, B., Grunebaum, H., Weiss, J., Gallant, D., and
Abernethy, V .: Social Relations, Stress, and Psychi
atric Hospitalization Among Mothers of Young Chil
dren. Social Psychiatry, V. 9: 7-12, 1973.
50. Grunebaum, H., Weiss, H., Gallant, D., Hartman, C.,
Gamer, E., and Abernethy, V .: Attention in Young
Children of Psychotic Mothers. American Journal of
Psychiatry, 131:8, August, 1974.
51. Grunebaum, H.: A Soft-Hearted Review of Hard
Nosed Research on Groups. International Journal of
Group Psychotherapy, April, 1975.
52. Grunebaum, H., and Semrad, E.: Family Therapy,
Problems and Prospects Chapter VI of Group Ther
apy by Wolberg & Aronson, 1974.
53. Grunebaum, H., and Christ, J. (E ds.): Contemporary
Marriage: Bond and Bondage. To be published,
Little, Brown and Company, 1975.
54. Grunebaum, H .: Countertransference. Chapter in
Alan and Rosemary Blasam, Becoming a Psychother
apist. Little, Brown and Company, Boston, Massa
chusetts, 1974.
246a
55. Cohler, B., Grunebaum, H .: Mothers and Grand
mothers: Personality and Childcare Across Three
Generations. University of Chicago Press, to be pub
lished.
56. Grunebaum, H., Weiss, J., Cohler, B., Gallant, D., and
Hartman, C.: Mentally III Mothers and Their Chil
dren. University of Chicago Press, March, 1975.
57. Cohler, B., Weiss, J., Grunebaum, H., Hartman, C.,
Gallant, D .: MMPI Content Scales and tire Assess
ment of Psychopathology Among Formerly Hospital
ized and Non-Hospitalized Mothers of Young Children.
Unpublished manuscript, University of Chicago.
58. Gallant, D., Gamer, D., and Grunebaum, H .: Children
at High Risk: An Evaluation of One Year Olds on a
Test of Object Permanence. Accepted for publication
by the Archives of General Psychiatry.
59. Grunebaum, H., and Weiss, J .: Joint Admission of
Mother and Child. International Encyclopedia of Psy
chiatry, Psychoanalysis and Psychology. B. Wolman,
M.D., Editor. To be published.
60. Cohler, B., Robbins, D., Hartman, C., Shader, R.,
Grunebaum, H., Weiss, J., Gallant, D.: Social Ad
justment and Psychopathology Among Formerly Hos
pitalized and Non-Hospitalized Mothers, I : The
Development of the Social Role Adjustment Instru
ment. The Journal of Psychiatric Research, 1975, in
press.
Exhibit No. 1, Resume of Ilenry Ulmann Grunebaum, M.D.
247a
61. Collier, B., Grunebaum, EL, Weiss, J., Hartman, C.,
Gallant, D .: Life-Stress and Psychopathology Among
Mothers of Young Children. American Journal of
Orthopsychiatry, January, 1975.
62. Grunebaum, H., and Abernethy, V .: Marital Decision
Making as Applied to Family Planning. Journal of
Sex <& Marital Therapy, Yol. 1(1), Fall 1974, p. 63-74.
63. Grunebaum, H., and Abernethy, V .: Ethical Issues in
Family Planning for Hospitalized Psychiatric Pa
tients. American Journal of Psychiatry. Spring,
1975.
64. Grunebaum, H., Abernethy, V., Clough, L., Groover,
B .: Staff Attitudes Toward a Family Planning Serv
ice in the Mental Hospital. Community Mental Health
Journal, Spring, 1975.
# * *
Excerpts from Deposition of Dr. Henry TJlmann Grunebaum
[13] By Ms. Gans:
Q. Is the question of the development of bonds and
family ties a settled matter in the area of psychiatry,
family-child psychiatry or is it controversial, or could you
explain? A. This is a comparatively recent issue of in
terest. That is to say, in the 30’s research was developed
by Spitz and others, which suggested that children reared
[14] in bad institutions faired very badly; and from this
in the early 40’s, Bolby wrote a very important mono
graph reviewing the literature on what is called maternal
deprivation, leading to the conclusion that the child re
quired a sustained and significant contact with his mother
in order to be a healthy individual.
248a
That conclusion was very influential in psychiatry and
in general practice of pediatrics and to a considerable ex
tent was exemplified by the writings of Spock in this
country who emphasized the importance of mothers stay
ing home to care for children.
Recently, as much more research has accumulated, peo
ple have learned—Maybe it will be useful if I cited
Michael Rutter, Quality of Mothering, Maternal Depriva
tion Reassessed, who states, “What has been thought to
be necessary for adequate mothering is a loving relation
ship which leads to attachment which is unbroken, which
provides adequate stimulation, and which mothering is
provided by one person and which occurs in the child’s
own family.”
Each of these 6 ingredients has been called into ques
tion in the last 20 years, and the areas and the nature of
the influence of these variables is still under study. * * *
* # #
[17] Q. O’Kay. What is the meaning and importance
to the child of the bonds it develops to its own parents?
A. That again is a complicated question. First of all, it
is usual that the child’s tie to his own parents is a per
sistent tie and remains throughout the relation of the
child’s life; so that the development of those ties is the
beginning of a lifelong relationship.
Second of all, the nature and quality of those ties tends
to influence the nature and development of future ties.
A child who develops a warm trusting [18] relationship
with a parent early on is likely to be able to develop other
such relationships with other individuals later on, where
as a child who has had a difficult relationship with the
mother is likely to be predisposed to difficulties in future
ties.
Excerpts from Deposition of Dr. Henry TJlmann Grunebaum
249a
The nature of these ties, in addition, is important be
cause these are the ties which place the child in his his
torical and biological continuity. He is a member of an
ethnic group. He has gained a history of family experi
ence, family culture.
The persistence, for instance, of the ethnic groups in
this country bespeaks the importance of cultural heritage;
and in addition, there is the importance of locating one
self biologically. One knows who one looks like, whose
traits one has inherited. All of these characteristics be
speak the importance of these early relationships.
* # *
[20] Q. Does a child’s ties to its parents prevent it
from developing ties to caretakers such as foster par
ents? A. No, not at all. In fact, one would assume the
[21] better the tie with the mother, the better the tie
should be with the foster parent and vice versa.
Q. O’kay. Is there any evidence that if a child develops
an attachment to a foster parent or any non-parent, that
the new attachment will displace or replace the child’s
attachment to its parents?
* * *
[22] First of all, I don’t think—Replacement sounds so
much like you take a spark plug out of a car and you
put another spark plug in; and I don’t think that is the
nature of ties, to parents. That is, a child can have mul
tiple ties to different people having different nature and
different qualities; and I don’t see that one can view this
as replacement—It’s the wrong way of looking at it.
* * *
Excerpts from Deposition of Dr. Henry TJlmann Grunebaum
250a
[29] Q. Is it possible to predict whether a child will de
velop an attachment to a foster parent simply because it
has lived in the foster home for a year? A. I don’t think
so. I think attachment is influenced too much by the qual
ity of the relationship to make the prediction that that
would occur. A foster child could have a loving and a
caring relationship with a foster mother, and they could
develop a very strong tie, fairly quickly; and a foster
child could have a hostile and unhappy relationship with
a foster parent who would be viewed as a provider of
food and supplies, but not of [30] affection. It is im
possible to predict.
* * *
Q- * * * I would also say that how a child responded to
a natural parent upon being reunited with them would
be a very poor predictor of what things would be like
over the long haul.
* * *
[31] Q. Would you agree with the proposition that in
the case of a child between 3 to 6 years of age, its ties to
its biological parents cannot survive a separation of more
[32] than 6 months? A. No, I wouldn’t agree.
# * #
[T]he G-.A.P. committee that I am involved with is writ
ing a set of guidelines for custody and divorce cases, and
one of the things that this is based on is the experience
of family psychiatrists of the importance of one’s ties with
one’s family over the generations and of the need of peo
ple to be members of families having a history; and to
the extent to which this historical continuity is fostered,
it would promote [33] health.
Excerpts from Deposition of Dr. Ilenry Ulmann Grunebaum
251a
I think it is analogous to the situation in the instance
of a divorce where perhaps the parents are separated geo
graphically and the child spends two months in the sum
mer with its father. Even if the child sees the father for
one month every summer, a 3 or 4 year old child clearly
would maintain a tie with that father over that period of
separation of 10 or 11 months; and the degree to which
the child’s mother would foster the continuation of that
child would be a major influence in the child’s percep
tion of himself and his father.
* * *
Q. I want to go back to the question of measuring sepa
ration by time. Would you agree with the proposition
that in the case of a child G to 8 or 9 years of age, its
ties to its biological parents cannot survive a separation
of more than a year, regardless of whether or not there
is [34] contact? A. No, I wouldn’t. * * *
In other words, we have data to prove that it is not
a foregone conclusion that a 6 year old’s ties to a parent
cannot last a year. W e have negative data. I don’t know
anyone who has demonstrated positive data.
To the best of my knowledge, there is no reason to
believe, based on any data in the literature whatsoever,
that a child 6 years old, ties to its mother will not survive
a year. I have heard of no such evidence.
Q. I want to go to the next group.
Would you agree with the proposition that in the case
of a child 9 to 12 years of age, its ties to its biological
parents can’t survive a separation of more than 18 months?
A. I think I would say exactly what I have said about the
younger children. To the best of my knowledge, there is
no data to support that proposition; and whatever [35]
Excerpts from Deposition of Dr. Henry TJlmann Grunebaum
252a
data one has in one’s own clinical experience would sup
port the view that the contrary is the case. * * *
* # *
The Witness: I cannot believe that Goldstein
and Solnit or any other expert in child psychiatry
would maintain that a child of 8 to 12 separated
from their father or mother for as much as 2 years
would not wish to meet that parent and have some
strong feeling about them. I would predict, in fact,
that the tie would be lifelong.
# # *
[39] Q. * * * Is the separation of a child from foster
parents after a year comparable to the separation of a
child from its own parents? A. Here we again have the
word “ comparable” and I would say the same thing about
comparability that I said earlier. Namely, that these are
different ties, and the reaction may have similarities; but
that doesn’t mean that it is the same.
# # #
[40] In a sense, one is asking for the following com
parison. A child is separated and is in foster care for a
year at some period during its life; and then at age 25,
one is trying to ask is that child better off if it stayed
with its foster parents or if it stayed with its natural
parents; and to the best of my knowledge, there is no
data to support either position.
[T]hat study has simply not been done, and the qual
ity of care in these two homes is of critical importance;
but we do know that the child has certain needs to locate
himself biologically and historically. We do know that
the child’s tie to a biological— the child’s biological mother
Excerpts from Deposition of Dr. Henry TJlmann Grunebaum
253a
has certain specific ties to the child that an adoptive par
ent is less likely to [41] have; and we also know that
what happens in that year is of great importance to the
extent to which the child’s foster mother fosters a relation
ship with the child’s biological mother.
Q. I f we take, for example, a child that enters a foster
home or foster care at the age of 5 years and has con
tinued contact with its own parent, at the end of a year
a decision has to be made whether to return the child
home.
In making that decision, where in your opinion would
be the greater risk to the child’s development? Continu
ing the child’s separation from its own parents or to
separation of the child from the foster parent? A. I think
I would be inclined to return the child to its biological
parents in such cases.
I think the evidence would have to be extremely com
pelling that the child’s relationship with the biological
parents was harmful to the child for me to indicate other
wise. It seems to me that to the extent to which foster
parents feel that they can obtain custody of children either
de facto or de jure, to that extent, first of all, it mitigates
against biological mothers feeling comfortable about using
foster care; and thus, they would be inclined to press other
people [42] into service, either relatives or other people
informally, to avoid the likelihood that they might lose a
child when, in point of fact, it would be in everyone’s
best interests for the child to be in a good foster home.
Furthermore, it places a potential incentive on the
child’s foster mother to separate and attenuate the rela
tionship with the child’s biological mother which can only
be bad for the child. So that I think that that can only be
harmful. It is very analogous to the issue I spoke of
Excerpts from Deposition of Dr. Henry TJlmann Grunebaum
254a
earlier about custody. It is in a child’s interest to feel
that its biological parents are good people, that its heri
tage is a worthy one; and to the extent where one feels
that his heritage has been denigrated, it seems to me to
that extent one would suffer identity problems in later
life, feeling that there is a part of oneself that is un
worthy of respect.
I asked you the question about the 5 year old child in
foster care for a year with continued contact with its
parents.
Would your answer be different if the separation was
for 18 months or 2 years, as long as there is contact with
the parent?
[43] Mr. Bienstock: I object to the form. Go
ahead.
A. I think to the extent to which there is regular and
frequent visitation, I think I would be inclined to return
children to their biological parents, irrespective of the
duration of the foster care.
* * #
[45] Q. Doctor Grunebaum, are you familiar with the
work by Freud, Goldstein and Solnit, entitled Beyond the
Best Interests of the Child?
# * #
* * * Yes, I am familiar with it.
# # *
A. I think it’s a terribly important book and in many ways
a very useful book and many of the things that it states.
Excerpts from Deposition of Dr. Henry Ulmann Grunebaum
255a
The particular thing that I think is most useful is the
emphasis, the need for speed and decisiveness [46] in
custody hearings; and that the present situation where
hearings are likely to be drawn out over many months
and years leads to a situation in which the de facto situ
ation becomes fixed because the decision gets postponed
indefinitely.
I think it is very bad for children because uncertainty
of location is bad for the parents and bad for the child.
So that I think that principle is very important, and I
think the principle that one should take the child’s point
of view and have a perspective on child development is
very important.
However, I think that their view that the child has one
psychological parent and that this parent needs to be in
total control and maintain as constant is erroneous.
Q. What is the basis of your disagreement? A. Well,
I have indicated the evidence that supports the view that
children have multiple attachments. I have indicated the
view— See, I think Goldstein, this particular book draws
its conclusions on the basis of psycho-analytical theory
and psycho-analytical theory is only one of the ways we
have of understanding children and their development to
day; and the evidence from psycho-analytical theory is
largely gathered from the [47] study of psycho-analysis.
It ignores the considerations of child psychology, and
it ignores the considerations of family research and fam
ily therapists. I think it ignores common sense in fact;
that there are too many everyday examples of children
having strong attachments to a father who has gone away
to the Army to believe that a child has only one attachment
and that one attachment is all important.
This more common sense view is supported by much
of the research I have cited to you already. What I think
Excerpts from Deposition of Dr. Henry Ulmann Grunebaum
256a
Goldstein and Freud meant or should mean really by
constancy is that the child needs some sense of stability,
that there is somebody that can be depended on. But
that person who can be depended on can be different
people can be several people over the child’s life, that a
child in the normal course of development will turn to a
mother at certain ages and a father at certain ages.
* * *
[48J Q. What is your opinion of the concept of the
psychological parent as described in the book? A. I think
I have said that already, indicating that children have mul
tiple psychological parents and the psychological parents
need not be the biological parents, need not be a woman,
and need not be the central care giver.
# * #
[49] Q. In your opinion, and this is I believe a view
advanced in the book, should only the child’s interest be
considered in placement decisions?
# * *
[50] A. No, I don’t. I believe that the welfare of all par
ties to a custody hearing need to be taken into account;
and in particular, experience in family psychiatry and
work in family psychiatry and family therapy leads to
the conclusion that while it is very important for chil
dren to be cared for and needed by their parents, it is
very important for children to feel that there are things
that they can do for their parents and that their parents
need them; and one sees instances o f the importance of
children feeling that they are useful to their parents and
Excerpts from Deposition of Dr. Henry TJlmann Grunebaum
257a
that they take their parent’s welfare into account, and
children will feel very guilty in adult life if they have
some feeling that they have left a parent in the lurch in
one [51] way or another when that parent needed them.
So it seems to me from the child’s point of view, it is
important that one takes the parent’s point of view into
account and vice versa.
Excerpts from Deposition of Dr. Ilenry TJlmann Grunebaum
* * »
[57] By Mr. Kantor:
Q. Fine. Doctor, would you be able to state without
more information that a natural parent-child psycholog
ical parent-child relationship is replaced by a subsequent
[58] psychological parent-child relationship after a period
of a year? A. No.
Q. Let’s suppose there is no contact during that year
with the natural parent by the child. Would your answer
then be the same? A. I guess it would be the same, yes.
Q. Suppose it was after 18 months. A. It would con
tinue to be the same. * * *
So that I don’t think that one can state a time period
where it is clear and obvious that it is in the child’s best
interests to stay in foster care, for instance. You know,
I guess that’s about it.
Q. In a previous deposition in this action Doctor Gold
stein at Yale testified in Court that a child separated, re
gardless of age, regardless of contact, more than 18
months, feels abandoned by the natural parent and gen
erally within that period of time a new psychological [59]
parenLchild relationship develops. Would you agree or
disagree with that statement?
* * »
258a
A. I would disagree with that statement. First of all,
it ignores the quality of the previous relationship and of
the ongoing relationship. Second of all, it ignores the
age of the child.
Third of all, it ignores the extent of contact of the
child during the intervening period, and I have already
indicated that children probably upward of 3 or 4 retain
an ongoing memory of any major attachments that they
have had for the remainder of their life; that there is no
such thing as the psychological parent, that there are a
variety of significant and central attachments in people’s
lives, out of which they form an identity.
To the extent to which they feel that some of these
central attachments are in conflict with other central at
tachments, to that extent they will have difficulty forming
a coherent identity for themselves.
Q. Doctor, would you say that— A. I want to add, I
would also like to state that I do not believe that Profes
sor Goldstein, whom I have [60] discussed these matters
with, can cite any evidence to support his point of view;
that it is a matter of personal opinion.
* * *
[62] Q. Doctor, can you conceive of any situation
where a continuation in foster care with a foster parent
is preferable to the return of the child to the natural par
ents, where that natural parent is fit and wants the
child? A. I wish I knew the answer to that particular
question because the most difficult form of it is the child
in foster care from birth on for a considerable period,
who the natural mother wishes to have him back and she
is fit and able.
I think my inclination would be to return the child to
the natural mother or parent at that point.
Excerpts from Deposition of Dr. Henry Ulmann Grunebaum
259a
Q. Even in that most extreme situation? A. Yes,
even in that most extreme state; hut I have to state that
is a personal opinion, and that the evidence to support
that opinion or the obverse opinion is lacking.
* * *
[67] Q. You testified I believe in response to a ques
tion from Ms. Gans that where a child was in foster care
for 6 to 18 months—and I believe the question was a
young child of 5 years old, that it would be a major loss,
I [68] believe were your words, for a child to leave foster
care. A. Yes.
* * #
Q. You also testified in response to a further hypothe
tical that in the case of the 5 year old who is in foster
care for one year, you would be inclined, to use your
words, to return that child to the biological parents. A.
I did.
Q. And that the evidence would have to be compelling
to do otherwise. A. Yes.
Q. Now, there could be evidence I take it from that
answer that would lead you to another inclination. Is
that correct? A. Yes, there could be.
[73] By Ms. Gans:
I believe I asked you which decision in your opinion
involved greater risk to the child; to put it another way,
greater loss to the child—to return home or to be sepa
rated from the foster parents. A. I believe my answer
would be not to return home [74] would be a greater
risk, all Other things being equal; and that there is un
fortunately very little hard information in that area.
Excerpts from Deposition of Dr. Henry Ulmann Grunebaum
260a
It is a matter very much of opinion, based on a variety
of variables that we have discussed today.
Q. And does your answer assume that the separation
from the foster parents entails some loss of the child?
A. It does indeed. It entails some loss for the child. It
entails a period of readjustment to the natural mother,
and I believe that loss and that separation is probably
better for the child to go through.
Recross examination:
Q. (By Mr. Kantor) Doctor, you testified in response
to a question by Mr. Bienstock that there could be evi
dence to indicate that your inclination to return a child
to a natural parent, to change such inclination. Could
you tell me what kind of evidence you would need? A.
Well, I think I would require evidence, for instance, of
physical abuse. That would be the kind o f evidence that
I would think of. Gross psychological or physical neglect
would be the kind of evidence that would be important
evidence, that the child’s parent was alcoholic and that
occurred frequently to the child’s detriment.
You see, I think those are central factors in [75] this
business. I think the problem of fitness is a very difficult
problem because socioeconomic and educational condi
tions so often enter into our view o f what is fit and what
is unfit; and that in my experience, a foster parent tends
to be a couple of a higher socioeconomic class than do the
biological parents in many of these cases.
Q. In other words, Doctor, you are telling us that the
evidence you would need to refrain from returning a
child to a natural mother or parent would be the same
types of evidence that would mandate removing the child
Excerpts from Deposition of Dr. Henry TJhnann Grunebaum
261a
Excerpts from Deposition of Dr. Ilenry Ulmann Grunebauni
from the natural parent in the first place. Is that cor
rect, Doctor? A. That is correct.
# • #
2G2a
Transcript of Trial on March 3, 1975
[6] M a r i e R. F r i e d m a n , called as a witness, having
been first duly sworn, was examined and testified as fol
lows:
Direct Examination by Ms. Lowry:
Q. Dr. Friedman, what is your occupation? A. I am a
psychiatrist.
Q. Where are you presently employed? A. I am direc
tor of the girls— the Young Adolescent Pavilion at Long
Island Jewish Hospital.
* * *
[7] Ms. Lowry: I move to have this introduced
as Plaintiffs’ Exhibit 1, and at this time on the
basis of this curriculum vitae I would like to have
it stipulated that Dr. Friedman testifies as an ex
pert witness. Counsel for Foster Children plain
tiffs has agreed to that, and counsel for the State
has agreed to that. I haven’t had an opportunity
to ask the other counsel whether they will agree to
that.
Mr. Hoffman: No objection.
Mr. Gallagher: No objection.
# # *
[8] The Witness: I run a psychiatric unit for
adolescent, for young adolescents as part of the
Long Island Jewish Hillside Medical Center.
Coupled with that is a day hospital program and
an after-care program that I was instrumental in
having established because of the necessity, the vital
263a
necessity of there being continuity in care, particu
larly for people in the young adolescent group.
In addition to that we have a new program that
consists of a residential facility, youngsters not liv
ing in the hospital but living in a group home
situation and coming to the hospital on a day
hospital program.
I mention this and it is important and bear with
me for a moment, because it is unique and because
I think the need for this kind of facility has bear
ing on this particular case.
These are youngsters who have been abandoned,
who having the way of juvenile court, who having
the way of flunking out of foster care, ultimately
ending up in [9] State hospitals, but because there
is no other facility for them and then five years
later we take the wreck and the debris of what is
left and these are the youngsters that we are work
ing with.
In addition I am consultant to the Town House
School and the Lake Road School.
Q. Dr. Friedman, have you had occasion to evaluate
and work with children in foster care? A. Yes. About
20 per cent of the children that we admit to our service
are children who are referred by various agencies who
are in foster care placement and come to the hospital for
treatment, either temporarily and replacement after that,
or return to the foster care setup.
Q. Based upon your professional training and experi
ence, have you been able to form a professional opinion
with respect to the quality of the emotional bonds which
can form between foster children and foster families?
A. Certainly.
Dr. Marie Friedman—for Plaintiff, Foster Parents—Direct
264a
Q. What is that opinion? A. That biology plays very
little part in the kind of bonds that are formed or can be
formed. The capacity to relate and to form a bond be
tween an adult and a child is dependent upon the two
people involved. Certainly with a foster child, their hun
ger and need for nurturing and [10] sustenance can be
even greater than with a natural child.
Q. Based upon your professional training and experi
ence do you have an opinion on how this bond can com
pare to the emotional bond between a child and his bio
logical parent?
# * *
A. The reason I asked you to clarify is that I think we
all assume that between a natural parent and child there
will be a warm, wholesome warm existing bond, which
isn’t necessarily the case. By the time a child is a foster
child, they have already been hurt, traumatised and aban
doned and because of that this will be an area of enormous
sensitivity and consequently the bond that will then form
between a foster child and a foster parent will initially
be a little guarded but then after that, and after a sense
of trust has been established, it could even be greater
having already been abandoned by a natural mother.
[11] Q. Based upon your professional training and ex
perience do you have an opinion on the effect of passage
of time on the foster family bond? A. Where it is good,
it will be enhanced. Where it it bad, it will get worse.
Q. Can you give us any opinion at all on the period
of time it takes for a significant foster family bond to be
formed? A. I don’t think time is as much a factor as the
qualities of the people who are involved. I think they re
spond immediately in a situation that is a good and favor
Dr. Marie Friedman—for Plaintiff, Foster Parents—Direct
265a
able one. Most of the times it does take a little time be
cause youngsters who have been traumatized will be a
little guarded in a new situation.
Q. What do you mean by a little period of time? A.
That is a little hard to say. I would certainly think that
within a matter of a few months either they are going to
make it or it is going to be a very guarded relationship.
Q. Based upon your professional training and experi
ence, do you have an opinion on the importance to the
child of continuity and stability? A. I spent my entire
professional life and stake my career on going to bat for
continuity for everything [12] for youngsters. Whether
it is maintaining the same social worker, the therapist,
whatever. That is one of the basics, continuity, as far as
child development is concerned.
Judge Carter: What if the relationship is bad?
The Witness: To maintain continuity in a bad
relationship, one would try to make the relationship
good. If that couldn’t be done, then a change would
have to occur.
Q. Based upon your professional training and experi
ence do you have an opinion on the effect on a foster
child of movement from one good situation to another
good situation? A. I think it is a basic tenet with chil
dren in child development that changes of any kind, un
less they are absolutely essential, even if they are good
changes, are bad for kids. Ivids react badly moving with
an intact family from one neighborhood to another, and
changing schools and having to change friends. And that
is pretty minimal in comparison to moving from a family,
a whole total family situation to another total family
situation, even if it were to be a good one.
Dr. Marie Friedman—for Plaintiff, Foster Parents—Direct
266a
Q. What do you think the effect is on children moving
from place to place, from home situations to home [13]
situations? A. Are we talking about from good to bad or
good to good? A. Perhaps you can answer that in two
different ways. From good to good and from good to
bad. A. I think I answered from good to good. I think
change is essentially bad and requires a great deal of
work and adjustment on the part of the child. Even if it
is going from one good situation to another. To go from
a bad situation to a good situation, I think everybody
would be in favor of except that that also requires a lot
of work to be done.
To go from one equally good situation to another
equally good situation would have all of the earmarks of
the evils of change as they affect children, and would
serve no good purpose.
Q. How are the evils of change that you just mentioned
likely to specifically affect children? A. The first thing
that happens when a youngster is traumatized is that re
gression is the first thing that occurs and how far a young
ster will regress will be dependent upon what degree of
pathology existed at the time that another stress in the
form of change was imposed upon him. And regression
can go all the way into a psychosis, into [14] a paralyz
ing depression and it can stay there and be permanent.
Again, depending upon the degree of pathology already
present.
Q. Do you have an opinion on the effect of moving a
child from a foster home in which ties have been developed
to a neutral foster home so as not to weaken the attach
ment to the biological mother? A. I think it is gross in
sanity. * * *
Q. Do you have an opinion on the damage that could
be done by separation which is later found to be contrary
Dr. Marie Friedman—for Plaintiff, Foster Parents—Direct
267a
to the child’s best interest? Can such a separation be re
paired, the damage of such a separation be repaired sub
sequent to the removal of the child? A. That if a child
were moved and then it turned out that was a mistake?
Q. That is right. A. And then it could be corrected by
putting the child back?
[15] Q. That is right. A. You need a pretty healthy kid
in order to sustain that kind of a situation, because chil
dren who are foster children have been so traumatized by
the initial abandonment of their natural parents that
somewhere, some part of them is constantly searching for
the idealized parent. "When they get pretty close to an
ideal and they are taken away, traumatized further, re
turned again, their faith and trust in the human beings
playing chess with them becomes so impaired that their
capacity for development becomes permanently impaired.
Q. You testified that many of the children with whom
you work are children who have been or presently are in
foster care.
Generally could you tell us what kind of experiences
these children have had that have led up to their hospi
talization and what kind of psychology problems they
manifest? A. It is hard to put it together in general
terms because children are individuals and quite specific.
Again let me preface this by saying the children who are
here are only the children who have had the most trauma
and the sickest and the ones who compensate as a result
of their life experience. What I say doesn’t [16] apply
to all foster children, only, because there are many of
them who make very successful lives living with their
families and never come to a psychiatrist.
The kids that I see that have in common certain things,
youngsters who have experienced enormous trauma by
the very fact of abandonment and being in a foster care
Dr. Marie Friedman—for Plaintiff, Foster Parents—Direct
2G8a
situation. One of the things that they all have in com
mon is the sense of uncertainty that exists in their lives,
even if it is a relatively good foster home situation. The
social worker comes to visit and it is a reminder that
this is only a temporary place.
There are all kinds of things going on that remind
these children that this is not their permanent home and
these are not their parents and this sense of uncertainty
coupled with those circumstances where movement has
to occur for whatever reasons, from one foster home to
another prevents any real bonds from forming.
I think probably a typical case is the—maybe a little
less than typical, is the youngster I have right now who
has been moved around so much that even though the
last foster home that he has been in, he has been in for
four years, he has not been able to establish a human
bond with a human being.
When he runs into trouble and he has difficulty, [17]
he runs away to Queens Children’s Hospital out at Creed-
moor. That has become to him the nurturing object and
this is what can happen to a youngster when they aren’t
able to be in stability in one home.
Q. Is this a child who was moved a number of times
before his present placement? A. Yes.
Q. Do you have any familiarity or dealings with child
care agencies who have children in foster care? A. Yes
I do.
Q. Do you have any experience with the decision-mak
ing processes in these agencies? A. I do, and I don’t
like to say it, but the fact is that this is an area of enor
mous distress to those of us dealing with psychiatric prob
lems and child development problems.
Q. Could you tell us why? A. I really wish I knew the
answer. I can only describe what goes on. There can be
Dr. Marie Friedman—for Plaintiff, Foster Parents—Direct
269a
a dossier ten inches thick on a youngster. It can have
information beyond what anyone needs to make any kind
of a decision, and either it isn’t read or it isn’t under
stood, and all kinds of action goes on in terms of moving
kids around inappropriately without regard to the al
ready compiled information or to [18] recommendations
that supposedly they come to us for.
There is a kind of—I am sure it is based on some good
intentions, a sense of ownership as far as children are
concerned. For a given agency, these are my kids and
this is our agency, and there isn’t an overlap to move
into another agency if that particular agency doesn’t
have an appropriate facility.
It is kind of a jealous guardedness, what we can do,
we can do better than anyone else, even though we don’t
have the right land of a group home or the appropriate
foster family.
The net result is the kids fall between the tracks.
* * #
[20] Judge Pollack: Doesn’t every case have to
depend upon the particular facts of that case?
The Witness: Beyond the generality, certainly
I would hope that the specifics of each case would
be dealt with.
* * *
[38] Judge Pollack: Suppose a fit parent is the
ultimate object of foster care to arrange for an
adoption or a return to a fit parent or some third
alternative ?
The Witness: The answer is very simply what
is going to be best for the child. I f a parent is ill
and the illness looks to be a temporary one, tem
porary care for the child is what is to be desired,
Dr. Marie Friedman—for Plaintiff, Foster Parents—Direct
270a
right? I f a parent manifestly is unable to care
for a child and if we know that beyond the mani
fest things that are there, psychologically, uncon
sciously the parent, although they may recover
physically, will reject and abandon the child, [39]
as a psychiatrist certainly my recommendation
would be that foster care toward an objective of
adoption would be what would be desired.
Cross examination by Mr. Hoffman:
Q. I f in fact the natural parent has been found to be
fit, whatever the temporary problem that she previously
had has been dealt with, is—between the choice of con
tinued foster care and returned to the parent, which is—
A. I would certainly think the answer would be return
to the natural parent.
Q. Even if it were the case that some type of a bond
had developed between the foster children and the foster
parent, if the natural parent is fit and able and willing to
care for the children, would it still not be in your pro
fessional opinion in their best interests to return to the
natural parent? A. I just said yes.
* * *
[42] Cross examination by Mrs. Gans:
Q. What I am trying to establish is does the—assuming
that a child has established an attachment with a foster
parent, but has also had an attachment to its parent, does
one have to cancel the other out? A. No. One doesn’t can
cel the other out. And I think characteristic of the prob
lems that exist with not only foster care children, any
child who has lost a parent early in life, is that there is
Dr. Marie Friedman—for Plaintiff, Foster Parents—Cross
271a
a sort of universal search for the lost parent. Idealized
though it may be, it goes on and on. Children can have
very adequate adjustments to life with the absence of a
parent, whether it is replaced by a foster parent or not,
and continue to have that yearning, longing search for
the original parent.
In the case of foster children, it is a very permanent
thing around adolescence where they become runaways and
look for their foster parent unless some tiling has [43]
happened that they have been able to see them and able
to know them somehow and able to know what it is they
are running to or not running to.
Q. As an example, if a child—let us say a seven-year
old child enters foster care and has had a good nurturing
relationship. It then develops a good relationship with a
foster parent. It returns home after a year. Is the child
capable of resuming the relationship with the original
parent? A. There are so many vital things that are left
out of these hypothetical cases. I f a child leaves what
had been previously an intact home with a loving and
nurturing mother and leaves with a heavy heart, and
plenty of hopes of going to be able to return and if in the
course of a year— and I can’t imagine an interested mother
not being able to make some kind of contact with the
child—
Q. Let’s assume contact. A. The question is when am
I coming home, just as soon as you can, et cetera. Then
human being are very self-protective, they don’t let them
selves get hurt too much. Then the child obviously knows
home is where the heart is and 'they are not going to make
the kind of attachment, child-parent attachment in a tem
porary situation because they haven’t broken the other
one.
Dr. Marie Friedman—for Plaintiff, Foster Parents—Cross
272a
[48] F lorence Creech, called as a witness, having been
first duly sworn, was examined and testified as follows:
Ms. Buttenwieser: Your Honors, my name is
Helen L. Buttenwieser. I am the court-appointed
attorney for the children.
Direct examination by Ms. Buttenwieser:
Q. Mrs. Creech, would you give us your present posi
tion and any facts in your present position or past ex
perience which qualifies you as an expert in foster care?
A. I am the executive director of the Louise Wise Serv
ices, which is an agency helping children and parents. We
have a foster home program. We place children for adop
tion. We have a maternity residence and a residence for
mothers and babies.
I have had over 35 years of experience in the child
care field, including all phases. Foster home placement,
institutions, day care, adoption, services to unwed parents.
I have also served as a consultant for the Child Welfare
League of America, which is the national standard-setting
agency. Have served on their board. I [49] have served
as their chairman of standards on child care.
Q. Mrs. Creech, in considering the return of children to
their own homes or placement in another foster home, are
all of the situations identical? A. Indeed not.
Can you tell the Court briefly some of the general types
in different situations that exist, so they know what we
are talking about? A. I would like to first say that I
think we consider foster home placement, any land of
placement of children, we have to think in terms of per
manent planning for children. Not think of foster home
placement in itself.
Florence Creech—for Children—Direct
273a
And that all that we are doing in placement must be
geared to an ultimate permanent plan for a child.
I think there are many kinds of situations in which
even though we do not want to move a cliild, it may be
necessary. In fact I feel very keenly about not moving
children from home to home, but we do have situation
where a child may become free for adoption and the foster
parents want to keep the child forever, but they really
do not want adoption. An agency then must determine
would it really be in the best interests of that child to
remain in this particular foster home or should that child
have the opportunity of being placed for adoption.
[50] I can think of other situations where the foster
mother is very eager for adoption. The foster father is
not. This is a case where the child is free and an agency
would consider this particular family but there is a dif
ference between the parents. Both parents feel—
Judge Lumbard: You used the expression “when
a cliild is free.” Would you explain just what you
mean by that?
The Witness: I mean the child who either has
been surrendered by the natural parents or where
an agency has talien legal steps to terminate par
ental rights.
A t our own agency we always first want to con
sider the foster family if a child can be placed for
adoption, because we do not want to move the child.
And in a great many instances the foster parents
do adopt the child, but there are situations where it
would not be in the child’s best interests.
There are cases where the foster family has given
very good physical care to the child, but where the
agency feels that psychologically this would not be
the best home for the child to grow up in.
Florence Creech—for Cliildren^-Direct
274a
Then there are situations where the child is not
free for adoption, but where there is consideration
of the child returning to his own home or cases
where it [51] might be felt the child should return
to another foster—should be placed in another fos
ter home.
You might have two cases where the facts ap
pear to be the same, but yet they are completely
different. For example, you can have a situation
where a child has been in the same foster home for
a few years. The natural parents become ready,
have been rehabilitated, can take the child home,
but where, after very careful consideration, the
agency might feel that it would be best for the child
if that child could remain in the foster home.
On the other hand, you can have the same set of
facts where the agency might feel that it would be
in the best interests of the child to be returned to
the natural parents.
Then we have cases where we sometimes have
had to move a child from a foster home where the
parents, the natural parents want to have continued
contact. Their plan is within a year or so to bring
the children home and where we find that in spite
of the agreement that the foster parents have
signed, in spite of the understanding we have with
them during the study that they will not partici
pate in any visits, they are against visits with the
natural parents, and where it may simply mean
that we would have to move the child, or the kind
of situation—
[52] Judge Lumbard: That you would have to
do what?
Florence Creech—for Children—Direct
275a
The Witness: That we might have to transfer
the child to another home. We might have the kind
of situation where the parent has to be out of the
picture initially through no choice of his or her
own. Maybe in the hospital, maybe in prison. And
then he is out in the community. The foster par
ents may have become very attached to the foster
child, which is what we want. We want them to
love the child. Nevertheless, their own feelings will
get in the way of the child reestablishing a relation
ship with the natural parents.
So that here again we might have to think in terms
of moving the child to another home. But there are
just no two situations the same, as I said in the one
example I gave. You can have the facts that sound
the same, but they are not. It does mean that an
agency must exert every land of caution, great skill,
great sensitivity and be ready, as I certainly am,
to always put the needs of the child above the needs
of everybody else.
I do want to add here that at my own agency
and I think many agencies, we, during the study of
a foster home, before that home is licensed, we go
into a great deal of detail about visits of the natural
parents, the [53] respective roles. This is written
out in an agreement which is signed. We also give
our foster parents a statement on their legal rights
as foster parents, letting them know what recourse
they have if there should be differences.
Judge Carter: May I interrupt and ask a ques
tion.
Florence Creech—for Children—Direct
276a
Mrs. Creech, am I correct in understanding when
you are saying a permanent plan, when you get a
child, based on the circumstances and so forth, you
will determine or seek to determine whether that
child is going to be temporary foster care and
returned to the parent, or whether this is a child
that will eventually be better off for adoption, is
that what you mean by a permanent plan?
The Witness: I mean when any child comes into
care, it should never be with the thought of the
child remaining in foster care permanently. There
really isn’t any such thing unless it is adoption, so
that I feel it must be worldng toward returning
the child to his own home and if this is not possible
after every effort has been made to help the family
establish a home, then take steps in terminating
parental rights.
Q. When you do decide to move a child from a foster
home, can you tell the Court what the procedures are,
particularly in relation to the foster family and to the
[54] child? A. This is always a very slow process, de
pending, of course, on the age of the child. Even a small
child who speaks, a toddler, will be very much involved.
The foster parents will know what we are planning, unless
there should be a sudden emergency that is beyond our
control, but when this is something we are planning, the
foster parents would know, the natural parents would
know, the child is told, we never just take a child and just
move that child.
It is done slowly, with the child having the opportunity
of getting acquainted with the people where he is going,
and I am putting it that way because where he is going
Florence Creech—for Children—Direct
277a
might be back to his own family, might be to an adoptive
home, might be to another foster home. But it would be
a slow process, with the new adults becoming acquainted
with the child, with the child visiting in the home, perhaps
for an overnight visit. How much contact there would be,
how slow it would be would depend on the age of the child,
where the child is psychologically, what is best for him.
In many cases we not only make these decisions with
the skill of our social work staff, but- we have the help
of one of our child psychiatrists, one of our consultants
[55] who will help us in planning.
Q. When you find a foster home for future placement
of a child in that home, is the agreement with the foster
family that this is a foster placement for the child to be
returned home, if the child is to be returned home, made
explicit? A. It is made very explicit. We very carefully
differentiate between adoption and foster care and our
foster families know that the child is coming to live with
them until another— a permanent plan can be made. The
length of time we generally cannot spell out.
Q. Once you have decided to move a child and have
taken the steps, is in your opinion, it detrimental to the
child for undue delay? A. It is, indeed. It would be, it
could be very harmful.
Q. In a procedure to review the acts of the child care
and the agency by the Department of Social Services or
any other body would, in your opinion, it be more effec
tive for there to be an adversary proceeding or would it
be helpful to the body that is hearing it, the hearing
officer to hear all of the thinking that went into the ques
tion of the necessity for moving the child? A. Before I
attempt to answer that, I just want to [56] say when I
outlined what our procedure is in moving a child, I failed
Florence Creech—for Children—Direct
278a
to include the fact that we must, in accordance with the
policy and procedure of the Department of Social Serv
ices, and the very large majority of the children under
our care in the custody of the Commissioner, and we must
send the family what they refer to as the 10-day letter,
which spells out the plan to move the child, which also
indicates in the letter, it gives the name, the phone num
ber of the person at the public agency whom they can call
if they have any question.
The foster parents are asked to sign this letter if they
do not have any question, so that it is clearly understood
that this is agreed to and, as I mentioned before, Mrs.
Buttenwieser, in our statement to the parents of their
legal rights, we indicate also their request to the State
Department of Social Services so that actually built into
the whole procedure there is the possibility of review.
I think that adding anything beyond this which could
delay a transfer when it is in the interests of the child,
would simply have an adverse effect.
Judge Pollack: Mrs. Creech, one of the points
that is made here is that in sending out the 10-day
notice, you don’t express or specify the reasons for
the removal. Are those reasons available to any
inquiring foster parent before [57] he gets to the
10-day conference?
The Witness: At our agency, this is certainly
discussed with them and before they get to that
conference our foster parents all know that if they
have any question about what they have discussed
with their social workers, they can call me and come
in and talk with me or with our associate director.
Florence Creech—for Children—Direct
279a
Judge Pollack: So they don’t go into that confer
ence blind. They are in a position to know exactly
what your reasons are?
The Witness: Eight. They may not agree with
the reasons, but they know what the reasons are.
* * *
Florence Creech—for Children—Cross
[59] Q. Mrs. Creech, are the wishes of the children, if
they are old enough to be able to indicate their wishes,
taken into consideration in reaching a final plan? A. They
are indeed.
Q. What criteria do you use for determining whether
to remove the child from a home? A. That is difficult to
answer because it depends so on each individual case,
and I could not use the same set of criteria for any two
cases, but I start first of all with a wish to not move a
child unless it really is necessary, and weigh everything
in accordance with that factor. In other words, there
might be certain situations where we might feel that
another plan would be better for the child, and yet where
we also feel that removal might be so traumatic that we
should not move. In other words, it really comes down
to the needs of the child, the age of the child, where the
child is in relationship to all of the adults in his horizon.
What the child’s psychological needs are, what movement
will mean to a child. In other words, I really cannot say,
here is a list that we use. It is much too individual.
# * *
[60] Cross examination by Ms. Lowry:
Q. Do you think your agency is outstanding with [61]
respect to its practices? A. I appreciate Miss Lowry’s
280a
comments. I hope it is outstanding, but I do not agree
that we are in such a minority as far as working toward
permanent planning for children. I think there are a
great many agencies. Perhaps we do a little more, per
haps we have given leadership in that direction, but I
think that there is great movement on the part of many,
many agencies in permanent planning for children.
* * #
Q. Mrs. Creech, are you aware of a 1971 study that
was called Children in Foster Care Who May Need Adop
tive Planning that was conducted by the Department of
Social Services, Office of Research, which showed that
something like a third of all of the children in New York
City foster care have been in foster care for over four
years despite the fact that they have not been freed for
adoption nor had any contact with their parents? A.
I am familiar with that, but that was 1971. Since then
the 24 month review has come into effect. I think [62]
that this review has indeed mobilized a good deal in the
field. I am not going to defend agencies by saying I
think they should have had legislation for this. I agree
in the past not enough was done, but I do not feel that
in 1975 we would find the same picture. I think that the
public agency, the court and agencies themselves have
been moving much more in the direction of permanent
planning and I am putting it that way because I think
it is all wrong to talk about adoption as the only plan.
On the contrary, I think that not enough has been done
in the past and much more should be done in working
with families toward returning children to their families
so that I keep stressing permanent planning and not
adoption.
Florence Creech—for Children—Cross
# # #
281a
[63] Q. Mrs. Creech, are you aware that there are
many agencies in New York City that have child care
population over 1,000 and 2,000 children, do you know
that for a fact yourself? A. Yes.
Q. Mrs. Creech, can you tell us whether or not your
agency has any written standards with regard to when a
child will be taken out of a foster care home? A. No, we
do not have that in writing.
Q. \ou testified that when the child is to be taken from
a foster care home and the foster parent does not sign
a waiver, your agency sends it what you call the ten-day
letter? A. No. When we are going to move a child, a
family always gets a ten-day letter and they then will
decide whether they will sign it or not sign it and if
they do not wish to sign it, agreeing to it, and indicating
that they do want to contact the public officials on this.
Then we would postpone taking steps to give them an
opportunity of doing so, but everybody has to get the
letter.
Q. You testified that the letter contains the reasons on
which you are basing your decision— [64] A. I did not
say that.
Q. Can you tell me, please, what the letter contains? A.
I have a copy of it way in the back that I brought with
me if the Court would want to see it.
Q. I don’t think we need that.
With regard to the planning parts of the letter, we
don’t need to see the form you use, but is there a place
on the letter for reason for planned removal? A. It is
not in the letter. As I explained before, this is handled
personally by the social worker.
Q. So the foster parent receives nothing in writing
telling the foster parent the reason for the child’s re
moval from the foster home? A. No.
Florence Creech—for Children—Cross
282a
Q. Is that correct A. Generally not. Generally it would
be in discussion.
Q- You also testified that your social workers discuss
the question of removal with the foster parent ahead of
time. A. Yes.
Q. Do your social workers as a matter of practice dis
cuss with the foster parents everything in the file that
has led up to the decision to remove the foster child? A.
I would say that they certainly discuss everything [65]
that is pertinent to the planning for the child. And it
would not be just at that point.
In other words, if we are working toward a plan of
returning a child to a family, this is being discussed right
along and in fact the foster parents would really be par
ticipating by the regular visits which generally when we
are really—when we are actually making specific plans
for return and are working toward a definite date, gen
erally the parents would visit in the foster parent’s home
so that the foster parents are very much a part of this.
Q. Does the foster parent have access to the agency
file? A. No.
Q. May the foster parent read it? A. No.
Q. If they ask to see a specific document in the file
and the social worker does not want to give it to them,
does the foster parent have a right to see the specific
document? A. What document?
Q. I f there is, for example, a psychological evaluation
of the child in your file. A. It might be show[n] to them.
They are always told about it. In fact, when our psychol
ogist sees the child, she also, after examining the child,
always talks directly with [66] the foster parent. So
that this is not a secret. The foster parent would know
the content.
Florence Creech—for Children—Cross
283a
Q. But is it in your worker’s discretion to withhold or
to share certain information; is that correct? A. I don’t
think in terms of withholding. I can’t think of any in
stance, frankly, where a foster parent has asked for in
formation specifically about a child, either about the psy
chological or psychiatric, that we have withheld because
likewise, if one of our child psychiatrists see the child,
the psychiatrist would also talk with the foster parent
afterward.
Q. With regard to other information in the file or with
regard to the general content of the file, would you say
it is in the social worker’s discretion whether to share
specific items in the file with the foster parents? A. We
do not share the file, as I said. We do not show the
file. That’s a different question and a specific document
which I answered.
Q. Might there be some circumstances that would lead
you to believe that it was necessary to remove a child
from a foster home which you would not want to com
municate to the foster parents? A. There might be. Gen
erally not. I certainly could not say that there never
would be.
[67] Q. In a situation in which your plan is to at some
point return the child to the natural family and the fos
ter parent has in your estimation become too attached to
the child, would it be a possibility that your agency would
move the child to a neutral foster home to facilitate the
child home? A. We might have to, but we certainly would
not do so without making every effort first of helping the
foster parents to work this out, to recognize with them
how attached they have become, but to help them to accept
what the planning is and to make it possible for the child
to remain, but if he could not, in other words, as I cited a
situation, we have had such a case where the foster par
Florence Creech—for Children—Cross
284a
ents just absolutely refused any visits of the natural
parents and no matter what we did we could not work it
out, so we were left with no choice but that would rarely
happen.
Generally we would be able to help the foster parents
to understand and from my long experience with foster
parents, the large majority want what’s best for the child.
Even though it may be difficult for them and they want a
permanent plan for the child and will move in that direc
tion.
Q. Mrs. Creech, do you think that reasonable social
work professionals could ever disagree about what is best
for a child? A. Yes.
* * *
[69] Q. I have one final question.
Mrs. Creech, have you ever had situation in your agency
in which natural parents have sought to have a child re
turned to them and your agency has felt it was not best
to have the child returned? [70] A. Yes.
# * #
[74] Q. When a ten-day letter is prepared for a child,
[75] could you explain to the Court exactly what the pro
cess is from the time the decision is made by the agency
to move the child until the child is removed, in fact re
moved from the foster home? A. Prior to the ten-day
letter there has been discussion way before that with the
foster parents, the natural parents, with the child, if old
enough, and the foster parents know that they will get the
ten-day letter. In fact, they know about the existence of
it and have seen a copy of it at the way back earlier when
they received a statement from us about their legal rights.
Florence Creech—for Children—Cross
285a
They see a form of that and they are told by the social
worker that they will be getting this letter, which they
are all prepared for and they also know that they may
sign it or not sign it. And the large majority, I think at
all agencies, do sign it and the foster parents then par
ticipate in what the steps will be, but we don’t wait until
that ten days. The ten days is only setting the date for
the final placement, but the transfer is taking place over a
much longer period than that.
* * *
[76] Q. You spoke about something called a 24-month
review. Can you describe to the Court what that is?
# # *
[77] Q. Is the foster parent in whose home the child
resides at the time the petition is filed notified of the
pendency of this proceeding?
* # #
A. They are not notified by the court, but they are notified
by our agency and they may participate if they wish to.
* * *
[79] In other words, we look at each case individually
and determine whether it would be in everybody’s interest,
mainly the child’s interest or not for the foster parent to
be there.
Florence Creech—for Children—Cross
* * *
[82] Ms. Gans: I am Louise Gans, attorney for
Intervenor-Defendants.
286a
Florence Creech—for Children—Cross
By Ms. Gans:
Q. Mrs. Creech, you testified earlier that ordinarily be
fore a child is returned home there would be stepped up
visiting; is that correct? A. Yes.
Q. I want to ask you whether in your experience ordin
arily a child that goes home is a child that has had regu
lar contact with its family?
* * *
[83] I would say generally there are regular visits
when there is a definite plan toward reuniting the child
with the family.
Q. * * * where for some reason there had not been
visiting, you would then arrange a period of visiting be
fore the child would be returned home? A. Yes.
* * *
Q. Would it be a typical social work decision in your
experience for a child to go home without there having
been [84] a period of visiting? A. No. That would be
atypical.
* * #
[91] Jane E dwards, called as a witness, having been
first duly sworn, was examined and testified as follows:
Direct Examination by Ms. Buttenwieser:
Q. What is your position? A. I am the executive direc
tor of Spence Chapin Services to Families and Children.
Q. Spence Chapin was originally known as an adoption
287a
agency. Are they now involved in foster care as well as in
[92] adoption? A. Yes. We started out as an adoption
agency primarily, but for the last 15 or 20 years we have
been a foster care agency and an agency that provides
services to families who are not connected with adoption
or foster care. A. Is the Harlem Dowling Agency still a
part of your agency or separated? A. Yes, it’s still part
of Spence-Chapin. It’s not autonomous as yet, although
working towards that end.
Q. You are the director of that agency as well? A. I
am.
Q. In order not to waste the Court’s time, I will not
repeat many of the questions that were asked, but I do
want to know if in removing children from foster homes,
are you able to work out any set criteria for the removal
of children? A. No, I think that it operates pretty much
the same as the former witness stated, that so many situ
ations are different and that consideration of the best
interests of the child, while that might be paramount,
there are other considerations in relation to adoption and
the return of children to natural parents that we have to
consider.
Q. You have heard the former witness, Mrs. Creech.
[93] Is the procedure in your agency the same as she
described and if not, will you tell us what the differences
are? A. Without having to recall exactly what she said,
we do send out—we do have a ten-day notice. We never
send it out. We take it out. We either invite the foster
family in to hear the reasons for the removal of the child
or replacement of the child or we visit the home and take
the notice with us there.
Q. Do you consult the child if the child is old enough?
A. Yes.
* * #
Jane Edwards—for Children—Direct
288a
Jcme Edwards—for Children—Cross
[94] Cross Examination by Ms. Lowry:
Q. Mrs. Edwards, where do most of the children go
who leave a particular foster home who do not go back to
the natural parents? A. Most of the children are placed
in adoption.
Q. Most of the children placed in care with your agency
are either going back to their natural parents or are going
to be free for adoption; is that correct? A. That is cor
rect.
Q. To your knowledge, is this situation typical of the
situations in other child care agencies in New York City?
A. I don’t know.
* # *
[95] Q. In the ten-day letter that your agency writes
out to the foster parent, can you give us any examples
of what is filled in on the blank space provided for the
reason why the child is being removed? A. It’s stated,
return to the mother or placed in adoption. I f there is
any other reason that has to do with the problem in the
foster home, that isn’t stated there. We talk to the foster
parents about that.
Q. That wouldn’t he written out in the letter? A. No.
Q. Do your foster parents who are questioning a deci
sion made by your agency to remove the child, do they
have access to your agency records? A. No, they don’t.
Q. Does your agency have any written standards with
regard to removal of children from foster homes, any
guidelines in writing? A. No, we don’t have any guide
lines as such, but we—in our foster care philosophy and
practices statement that every case worker and staff mem
ber has, general procedures are stated, such as if you
have any questions about how a child is doing in his home,
289a
the procedure would be to talk [96] with the foster par
ents about it, talk with your supervisor about it, and the
supervisor then talks to her superior and the decisions
are made by the administrative staff. Never a decision
by one person. And then it’s shared, the reasons are
shared with the foster parents.
Q. Miss Edwards, are there any situations in which a
child who is free for adoption has formed a bond with
the foster parents and the foster parents do not want to
adopt the child? A. Yes, unfortunately we have many
such situations like that.
Q. What are your guidelines with regard to handling
such a situation? A. We have had some success when
we continually talk with the foster parents about adoption.
We point out to them the value it would have for the
child. And sometimes the child himself even asks the
foster parents to adopt.
We bring the foster parents into meetings with other
foster parents who have adopted, so they can tell them
about the experience. We bring in officials from the State
and from the City to help with any questions they may
have about the subsidy, whether it will last or not. We
talk with them about the psychological effects of having
a child in the home who is free for adoption and would
have to be [97] removed to another home for adoption if
he has been there a long time and wants to stay there
and everything is fine in that home. * * *
* * *
Q. Do you ever remove a child from a specific foster
home without a specific order from a 392 hearing? A.
You mean to return to the natural mother?
Q. Either to return to the natural parent or to move
elsewhere. [98] A. We rarely wait for the 24-month re
Jane Edwards—for Children—Cross
290a
view if in our opinion the best interests of the child dic
tate us to move the child from the home, either for adop
tion or return.
Q. When a natural parent asks for a child back, does
your agency always give the child back? A. No, not
always.
Q. Are there any circumstances in which you think
the child’s interests differ from the natural parents’ in
terests? A. Yes. We have situations where we think
that the natural parent has an interest in the child, has
maybe shown an interest in the child in visiting, but that
based on opinions from other disciplines, whe is emo
tionally able to care for that child and it’s in his best
interests to remain where he is or to be placed elsewhere.
And if we feel that way, then we go to the court to
free the child or to make an effort to free the child for
adoption.
Q. Are you able to form an opinion with regard to in
general the nature of foster family relationships?
* * *
A. We have a very positive opinion about foster [99]
family relationships. We work very hard to make those
ielationship[s] very close so that the child will have, while
he is in the foster home, good care and close care and if
it’s necessary for the child to remain in the home for a
long period of time, then his best interests would be
served.
Also if it s not jjossible for him to be returned to his
natural parent or placed in an adoptive home outside of
the foster home, working in a family centered way with
the foster parents and bringing—helping to bring about
a close relationship, benefits the child in maintaining a
home for him that will be a personal one.
Jane Edwards—for Children—Cross
291a
Q. Have social workers assigned to your agency ever
disagreed with regard to what might be best for a par
ticular child? A. Yes.
Ms. Lowry: Thank you.
Judge Lumbard: How many children do you
have under your supervision?
The Witness: We have 1,300 children.
Judge Lumbard: That would make you one of
the largest agencies?
The Witness: Yes, it does.
* # *
Jane Edwards—for Children—Cross
[101] A. Foster care is a temporary plan for a child to
act in substitution for his natural family until his natural
family is ready to take him back and able to take him
back or until he is freed to be placed in adoption and
thereafter it is the obligation of the agency to continue to
try to find a permanent adoptive home for him if that is
in his best [102] interests.
However, as I said before, when he gets to be 12 or
13, and this is the only home for him, then the best inter
ests of the child then have to be taken into consideration.
For some children it might be adoption outside the
home. For many of them it is not. And that’s where—
it’s not really foster care after that. It’s a permanent
foster home different from a temporary one.
# # #
[105] Cross examination by Mr. Hoff mam:
Q. * * * once you have a natural parent in the picture,
it’s the fitness o f that parent, the ability of that parent
292a
as opposed to whatever is happening in the foster family
that’s the determining factor as to whether the child goes
back? A. Not by itself. That’s not 'the way you stated
it at first. That’s not the only factor that’s taken into
consideration, whether 'the mother is fit or not.
[106] Does she want the child? And how often has—
how has she demonstrated wanting the child, being able to
care for the child, though she may be perfectly fit herself
in managing her own life and how will she be as a parent?
What dangers may we be subjecting the child to, which
has nothing to do with the quality of care he has had
in the other place, because if he hasn’t had, for example,
good quality care in the foster home where he is, * * *
Q. The decision to return the child to a natural parent,
is that a carefully arrived at decision? A. Very care
fully.
[107] Q. Sometimes it takes a period of months before
'the decision is actually made? A. Sometimes it does,
yes.
Q. Sometimes it takes even a longer period of time? A.
Sometimes it takes years.
* * #
Cross examination by Ms. Gams:
[109] Q. * * * after the 24-month review, if the court
gives you an order to free the child for adoption, you feel
bound by that? A. Yes.
Q. Or if the court gives you an order to return the
[110] child? A. Yes.
Q. Or if the court gives you an order to keep the child
in its current foster home, you feel bound by that? A.
Yes. And if we disagree, we go back to the court to
ask for a change in the disposition.
* * #
Jane Edwards—for Children—Cross
293a
[123] Q. Do you feel that subjecting natural parents
to an adversary hearing or an attack by them in an ad
versary hearing prior to the return to them of their chil
dren might deter some o f them or weaken their resolve
to get their children back? A. No.
* * #
Jane Edwards—for Children—Cross
Christiane Goldberg, called as a witness, being first
duly sworn, testified as follows:
* * *
[124] Direct examination by Mr. Bienstoch:
# * #
Mrs. Goldberg, do you live in New York City? A.
Yes.
Q. You live in Brooklyn, don’t you? A. Yes.
Q. Are you and your husband Ralph Goldberg plain
tiffs in this action? A. Yes.
Q. Are you and your husband foster parents? A. Yes,
we are.
Q. Since when have you and your husband been foster
parents? A. We have been foster parents for five and a
half years.
Q. Under what agency are you authorized— A. Under
the Bureau of Child Welfare.
Q. That is a City agency? A. Right.
[125] Q. Do you have any children of your own? A.
Yes, a daughter.
Q. One daughter? A. Yes.
Q. And her age? A. She is nine.
294a
Q. Could you tell tlie Court why you and your husband
became foster parents?
* * #
Christiane Goldberg—for Plaintiff, Foster Parents—Direct
A. Because we like kids. Because we like a big family
and because there was a need for foster parents.
Q. Do you and your husband have a foster child now?
A. Yes, we do.
Q. Is that— A. That is Rafael.
Q. How old is he? A. He is twelve.
Q. How long has he been your foster child. A. He has
been with us for five and a half years.
Q. Could you relate to the Court under what circum
stances Rafael became your foster child? A. It was sup
posed to be an emergency placement. [126] He came to
us on an emergency basis because his foster mother
needed to take a vacation and she would not take him
along and they needed a place for him for two weeks until
she would come back.
* * *
A. He had been described to us as mentally retarded,
hyperactive, brain-damaged and emotionally disturbed. The
other thing we knew that he had a lot of tantrums.
Q. He had a lot of what? A. Tantrums and that’s about
all.
Q. Can you describe Rafael’s behavior during the first
several years he was in your home as your foster child?
A. He did have a lot of tantrums. He was very active.
He could not be left alone for even one minute from the
time he woke up until the time he went to sleep. He would
wake up around five o’clock in the morning. He could not
play a game with other kids, lie could not play cards or
295a
be occupied with toys, he didn’t know what to do with
cars [127] except bang them and crash them. He had tan
trums every time we asked him something.
The only thing he really knew how to do was to fight.
He had two fears. One of them was that when he waives
up the next morning I would be dead because my husband
would have killed me with a knife, and the other fear was
that he would be taken away. The first fear, we talked
about it and after that he woke up a little later in the
morning and that made it easier for us.
The second fear, we had to deal with it. We had to tell
him that we would not send him away.
Q. Mrs. Goldberg, can you describe Rafael’s behavior
over the last several months up until the present time?
A. Well, he is much better. In the beginning we used to
have to sit with him and do home work with him every
evening from 4:30 until 7:00. Now he is able to do that
almost by himself. He, for the past few months, started
to have a few friends. Those are still loose friendships
but it is still kids he can relate to, and that he can play
with and he doesn’t have that many fights any more, and
he is able to play. He is a good athlete. He knows how
to swim and he is on hockey and baseball and football
teams, and that kind of thing.
[128] Now he begins to feel that he can do things and
that things are worth trying because maybe he will suc
ceed, which is something that he didn’t do before.
Q. Mrs. Goldberg, do yon and your husband receive
money for Rafael’s care from the Bureau of Child Wel
fare? A. Yes.
Q. Do you and your husband also spend money of your
own for Rafael? A. W e don’t keep different accounts for
different members of the family. W e don’t keep track of
we spend this for this—this much for this one and this
Christiane Goldberg—for Plaintiff, Foster Parents—Direct
296a
much for that one. I f everybody goes some place, then it
is paid for everybody and if somebody needs something,
then he gets it.
And when he needed a special school, we put him in
the Montessori School.
Q. And the BCW reimbursement did not cover the cost
of the Montessori School?
* # *
Christiane Goldberg—for Plaintiff, Foster Parents—Direct
A. We put him in the Montessori School. We paid for
the tuition. We paid on time as the school wanted us to
pay and we got reimbursed for some of it.
Q. Did your family take Rafael with you on family
[129] visits and on family trips? A. Yes.
Q. Is Rafael treated in sum as an equal member 'of your
family? A. He certainly is.
Q. Mrs. Goldberg, are you a member of any foster
parent organization? A. Yes.
Q. Are you an officer in a foster parent organization?
A. Yes, I am.
Q. Do you know of foster children who have been re
moved from their foster families without written notice
to those families? A. Yes, I do.
Q. Approximately how many in your knowledge? A. I
would say I know about ten or twelve cases.
Q. Over what period of time? A. Over maybe a year or
a year and a half.
# * •
[130] Q. Have you or your husband ever received writ
ten notice that the Bureau of Child Welfare is planning
to remove Rafael from your home? A. No.
Q. You have not? A. Not written.
297a
Q. Are you concerned that the Bureau of Child Wel
fare might remove Rafael from your home? A. Defi
nitely. It is like a sword hanging over our heads.
* * *
Christiane Goldberg—for Plaintiff, Foster Parents—Direct
Judge Pollack: Why are you concerned? What
is it that they have done that leads you to believe
that they have any intent to remove the child?
The Witness: The worker has spoken about it.
Judge Pollack: What has she said and why?
What reason has she given?
[131] The Witness: We never received any rea
son.
Judge Pollack: Did you ask for a reason?
The Witness: We never got any.
Judge Pollack: You didn’t ask for one either,
did you?
The Witness: I think we did.
Judge Pollack: What did the worker tell you as
to the possibilities of removing the child, for what
reason? Was it because of the child’s health?
The Witness: We got a letter from one of the
supervisors saying we were doing a wonderful job.
Judge Pollack: What occasion was there to no
tify you that the child might some time be removed ?
Who said something?
The Witness: Every worker had essentially a
different plan. Every time we change workers, they
had a different opinion. Even the last worker first
said he wasn’t going to move him and then he said
he was.
Judge Pollack: You got no reasons for it, is that
it?
298a
The Witness: Right.
Judge Pollack: And nobody has taken any steps
to remove your child, have they?
The Witness: Well, we objected.
[132] Judge Pollack: And that ended it?
The Witness: I don’t know what the worker has
in mind.
Cross-examination by Mr. Hoffman:
* * #
[134] Q. Talking about the last year or so, this par
ticular controversy, when were you first informed that
Rafael would be taken out? I don’t mean going back five
years ago, four years ago when it might have been dis
cussed as a possibility. Were you actually informed that
they are about to take him out within the last year or so ?
A. When he told that to the Judge at the 392 hearing.
Q. The 392 hearing they told the Judge that they [135]
might be taking Rafael out.
Q. Do you plan to adopt Rafael? A. We have a com
mitment to him and to the agency that we want to keep
him and raise him. We made that very clear to each one
of the workers. We had to make that clear to Rafael
from the beginning because it was a crying need of Rafael.
He was constantly asking, are you going to throw me out,
are you going to call the worker, and we had to reassure
him constantly that no, we were not going to take him out,
throw him out, that we were going to keep him.
Q. Is Rafael, to your knowledge, free for adoption? A.
Not to my knowledge.
Q. I f Rafael were free for adoption, would you be will
ing to adopt him? A. He is not free yet.
Chistiane Goldberg—for Plaintiff, Foster Parents—Cross
299a
Q. I said if Eafael were free for adoption. A. I don’t
know. He has his own identity. We wish to respect his
identity, his past, his sense of belonging to where he comes
from.
[136] Q. So if the agency were to undertake to free
Eafael for adoption, assuming for the minute that he isn’t
free, would you be willing to assist the agency— A. No,
I don’t think he should be cut off from his original family.
* ♦ *
[140] Judge Pollack: When was the 392 hearing
held, what month?
The Witness: April or something.
Judge Pollack: April of 1974?
The Witness: Yes.
[141] Q. Were you present at the 392 hearing? A. Yes.
Q. And were you permitted to speak and offer what
position you wanted to offer? A. Yes.
Q. And were you apprised prior to the 392 hearing
that such a hearing would be held? A. Were we apprised
that there would be a hearing?
Q. That’s right. A. Yes.
Q. Was there a disposition made by the judge, if you
know, at the 392 hearing? A. He said foster care con
tinue.
Q. Was there any other provision of that order? A.
He said that visits should be set up if the child wanted it.
# # #
Chistiane Goldberg—for Plaintiff, Foster Parents—Cross
300a
[144] D orothy L hotan, called as a witness, being first
duly sworn, testified as follow s:
[145] Direct examination by Ms. Lowry:
Q. Where do you live, Mrs. Lhotan? A. Hicksville,
Long Island.
Q. Are you a plaintiff in this lawsuit? A. Yes, I am.
Q. Are you a foster parent? A. Yes, I am.
Q. How long have you been a foster parent? A. Four
teen years.
Q. For which agency have you been a foster parent?
A. Social Services of Long Island.
Q. Is that the Nassau County Social Services? A. Nas
sau County.
Q. Do you have any children of your oavu? A. Yes, I
have.
Q. How many children do you have? A. I have three.
Q. How old are they and what do they do? A. I have
a student 17. I have another son that’s 27 and I have on
that’s 30.
Q. What do your children do, the ones who are not
students? [146] A. They are police officers.
Q. Why did you and your husband become foster par
ents? A. Because we love children very much.
Q. Do you presently have any foster children in your
home? A. Yes, I have.
Q. What are their names? A. Cindy, Cathy, Cheryl
and Patty.
Q. How old are they? A. Eight, nine, eleven and
twelve.
Q. When did the girls come to live with you as foster
children? A. Cheryl and Patty came 1970, September.
Cindy and Cathy came to my house September 1972.
Dorothy Lhotan—for Plaintiff, Foster Parents—Direct
301a
Q. Do you have any other foster children in your home?
A. At the present time?
Q. At the present time. A. No, I have the four.
Q. How many other foster children have you had be
fore the Wallace children? A. Six.
Q. How long did each of them stay with you? [147]
A. One, two and three years.
Q. Where did each of them go when they left your
home? A. Back to their parents.
Q. Each of them went back to their parents. A. Yes.
Q. Did you ever express any objections about any of
these children leaving your home? A. No, I didn’t.
Dorothy Lhotan—for Plaintiff, Foster Parents—Direct
* * *
Q. Why didn’t you express any objections aboult these
children leaving your home? A. Because they went back
very happy.
Q. Do you receive money for taking care of the Wallace
girls? A. Yes, I do.
Q. Do you spend any of your own money on their care?
A. Definitely.
Q. Do the girls participate in family activities? [148]
A. Yes, they do.
* * *
Q. To what extent do they participate in family activ
ities? A. We go to church together. We get together as
other families. We go on vacations together. They do
very well in school.
# * *
302a
Q. During the time the children have been in your
home, have you had any contact with the workers from
the Nassau Department of Social Services? A. Yes, I
did.
Q. Approximately how many workers if you know, have
you had contact with from the Nassau Department? A.
Three.
* # #
Dorothy Lhotan—for Plaintiff, Foster Parents—Direct
[149] Q. Have any of these workers who have had con
tact with you complain to you about how the girls were
doing in your home prior to June of 1974? A. No.
Q. In June of 1974, were you asked to go to the Chil
drens Bureau? A. I did.
Q. For Avhat reason? A. The supervisor, Mrs. Mays,
had called me on the phone and she didn’t tell me for
what reason.
Q. What happened when you went there? A. When I
got there, she had given me a paper to sign which I had
objected and she also had said that they are going to
be removed from the home July 9th and if they don’t
want to come with us, we are going to drag them out.
Q. Was that the first time, Mrs. Lhotan, that you heard
about any plans to take the children out of your home?
[150] A. Yes.
Q. Were you told the reason at that time? A. Because
we loved them too much. They loved us too much.
# * #
Q. Yes. At the time you had the conversation with
Mrs. Mays, you testified she gave you a paper to sign,
were you told by Mrs. Mays that you had any right to
object to the girls being taken from your home? A. No.
303a
Q. And she gave you a paper to sign? A. Yes, she did.
Q. Did you sign the paper at that time? A. No, I
didn’t.
Q. What happened after the meeting? A. After the
meeting we had come home very upset about the whole
issue and June the 28tli we had gone to church as a fam
ily and I had met the priest and the priest had given me
a telephone number of Flora.
* * *
A. And she had recommended me to Marcia.
[151] Q. Mrs. Lhotan, you have had foster children be
fore. Why are you objecting in this instance to having
the children removed?
* # *
A. Because there was never—if there were just a few
visitings. The mother never came to visit these children.
She had called me up a year ago, two years ago on the
phone stating, wanting to talk to the children.
At the time the children weren’t there, they were in the
park. I had asked her, call hack at 6 :00, dinnertime. I ’ll
make sure they are there. She says, all right.
I had kept the children indoors, I wouldn’t let them out
thinking she was going to call. She never called.
I haven’t heard and I haven’t seen the mother since
then.
Q. Mrs. Lhotan, to your knowledge have any of the
girls been asked by the workers at the Nassau Children’s
[152] Bureau how they feel about leaving your home?
A. No.
* * *
[157] Q. Could you tell us what Mrs. Mays said to you
exactly when you went in there? A. She had told me that
she had already discussed it with the staff, that even if
Dorothy Lhotan—for Plaintiff, Foster Parents—Direct
304a
we didn’t sign, the children would still be dragged out
of our home and I had asked them how many are coming
for the children and they said, one won’t be enough. There
has to be a few of them coming.
My husband asked them, how many cars. She had
stated two cars. There wouldn’t be enough with one car.
[161] Examination by Ms. Gans:
Q. Mrs. Lhotan, * * * Isn’t it true that there was a
foster care review proceeding concerning tire Wallace girls
in 1972? A. Could you explain that a little more clear.
Q. Did you go to Family Court after you had the two
older girls for two years, was there a hearing in Family
Court? A. Yes.
Q. And you were there? A. Yes.
* # #
[162] Q. * * * the hearing was about all the six chil
dren at the time? A. Yes.
Dorothy Lhotan—for Plaintiff, Foster Parents—Cross
Cheryl Lhotan—for Plaintiff, Foster Parents—Direct
# # #
[164] C h e r y l L h o t a n , called as a witness, being first
duly sworn, testified as follows:
# # #
[165] Direct Examination by Ms. Lowry:
Q. Cheryl, tell the Court how old you are? A. Twelve.
Q. Cheryl, do you understand what it means to [166]
tell the truth? A. Yes.
Q. Do you understand you are under oath now and you
have to tell the truth? A. Yes.
305a
Q. Do you know why you are here now, Cheryl? A.
Yes.
Q. Do you know that the Nassau Childrens Bureau
wants you and your sisters to leave your foster home, is
that right? A. Yes.
Q. Has anyone from the Childrens Bureau asked you
whether you want to leave? A. No.
Q. Has anyone asked your sisters, if you know? A. No.
Q. Do you have an opinion about whether you want to
leave or not?
# * *
[167] A. Yes.
Q. Do you want anybody to ask you? A. Yes.
Q. Why is that? A. Because we were supposed to be
taken away from our foster parents without any say.
Q. Do you consider it important to have a say in whether
you go or not? A. Yes, I do.
* * *
Ms. Cans: Your Honor, I would like to call
Naomi Rodriguez.
Mr. Bienstock: Your Honor, at this time the
plaintiffs would like to make an objection to what I
believe is going to be an across the board objection
to each of the witnesses offered by Mrs. Gans. * * *
[169] We wanted to show to the Court the follow
ing, which is related to our view of the foster care
system as a whole. When a parent voluntarily,
and we are talking about voluntary foster care.
When a parent voluntarily places her child in foster
care, she signs a form which authorizes the Com
missioner of Social Services, a public [170] official,
Cheryl Lhotan—for Plaintiff, Foster Parents—Direct
306a
Colloquy
to care for her children. She does not authorize
any private individual to care for her foster chil
dren.
* # *
We want to show what the significance of one
year is in terms of a mother who has a child in
foster care [171] because it is our position that
since she has never been told that she must get her
child out of foster care in one year or else, that in
fact the change in rights and expectations would be
penalizing the parent, who sees her child and wants
her back, for delays and processes which are beyond
her control, so we wanted to show the Court through
two witnesses how it is possible to have a child in
foster care for a year without there meaning or
signifying in any way any kind of abandonment.
# # #
![172] Ms. Gans: I do think it is in dispute. The
consequence of conferring on foster parents the
kinds of rights winch they seek, it is not a question
of the [173] hearing alone. They are asking for
recognition to status as parent—
Judge Pollack: That’s a matter of law, isn’t it,
and the philosophy of the state.
Ms. Gans: According to plaintiff: it is a matter
of psychiatric evidence.
Judge Carter: You can’t establish anything like
that by the natural parents, can you?
# # #
307a
Naiomi Rodriguez—for Intervenor Defendants—Direct
[175] Ms. G-ans: I also have a witness who had
a child in foster care and the child has been re
turned to her and I wanted her to testify about
her experience with foster care and about the re
uniting of a family.
Judge Pollack: How does that prove that there
has been or has not been due process? This is a
federal court convened to determine whether or not
a statute gives due process and equal protection of
the laws and you are going to have a lady say, I
had a child in foster care and she was returned to
me.
Ms. Gans: But the preliminary inquiry, as I
understand it, is is there a constitutional right or
protected interest that—as hard as I have tried,
that [176] inquiry involves questions of policy. It
involves questions of how does the foster care sys
tem work.
* * *
[ N a i o m i B o d r i g u e z ]
'[179] Direct Examination by Ms. Gans:
Q. Mrs. Bodriguez, are you the mother of a child Edwin
Bodriguez? A. Yes.
Q. Did you place Edwin in foster care in March 1973?
A. Yes.
Q. Did you do it by signing a form? A. I did it by
signing a form.
Q. Was the form read to you? A. Yes, it was.
Q. Did you mark— A. Yes.
Q. How did you mark your name? A. I don’t mark my
name. I do an X. I make an X.
* # #
308a
Naiomi Rodriguez—for Intervenor Defendants—Direct
Judge Lumbard: Everybody agrees this is the
form executed by the witness.
Q. Mrs. Rodriguez, did you ever have any hearing con
cerning your children after you placed them in foster
[180] care? A. No.
* # *
Q. You placed your child in foster care in March 1973.
What agency is your child with? A. The Harlem Dowling.
Q. When did you ask for your child back? A. I gave
them a period of six months,
Q. When did you actually ask to have your child back?
A. After the six months were over.
Q. Was your child returned to you? A. No.
Q. Was there any kind o f hearing held? [181] A. No.
No kind. No definite answer. It was just absolutely re
fused.
Q. Were you advised that you could go to a lawyer
to ask for the return o f your child?
Mr. Bienstock: Your Honor, at this point I must
object. * * *
# # #
[182] Judge Lumbard: Has the child been re
turned yet?
Ms. Gans: No, the child has not been returned.
# * #
Judge Lumbard: There is no dispute about those
issues. There is no need to take the time of the
Court and all the other people here assembled to
develop matters as to which there is no dispute.
# # #
309a
Colloquy
[183] Ms. Gans: May I just, with all due respect
to the Court, simply state on the record that I feel
that I have a right, that I am entitled on behalf
of my clients who are the parents of children in
foster care and that would be the story of their
individual case.
There has been much talk about abandonment,
you see. My clients placed their children in foster
care because of illness or other crises. I want the
testimony on that. I wanted testimony on parents
who maintain regular contact when they have their
children in foster care. * * *
* * #
[184] I also wanted to offer evidence of a mother
and child who have been reunited after foster care
placement and talk about their adjustment, because
the suggestion implicit in plaintiffs’ case is that
after one year the relationship between the foster
parents and child is so intense that it must not be
broken, that that is the relationship which now
should be preserved and I thought it would be ap
propriate to hear from a mother and child who
have been reunited after a separation to see how
they are doing.
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