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Smith v. Organization of Foster Families, 431 U.S. 816 (1977)

Smith v. Organization of Foster Families for Equality & Reform

No. 76-180

Argued March 21, 1977

Decided June 13, 1977*

431 U.S. 816


In this litigation appellees, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Under the New York Social Services Law the authorized placement agency has discretion to remove the child from the foster home, and regulations provide for 10 days' advance notice of removal. Objecting foster parents may request a conference with the Social Services Department where the foster parent may appear with counsel to be advised of the reasons for removal and to submit opposing reasons. Within five days after the conference the agency official must render a written decision and send notice to the foster parent and agency. If the child is removed after the conference the foster parent may appeal to the Department of Social Services, where a full adversary administrative hearing takes place, and the resultant determination is subject to judicial review. Removal is not stayed pending the hearing and judicial review. New York City provides additional procedures (SSC Procedure No. 5) to the foregoing statewide scheme, under which, in lieu of or in addition to the conference, the foster parents are entitled to a full trial-type pre-removal hearing if the child is being transferred to another foster home. An additional statewide procedure is provided by N.Y.Soc.Serv.Law § 392 whereby a foster parent may obtain pre-removal judicial review of an agency

Page 431 U. S. 817

decision to remove a child who has been in foster care for 18 months or more. The District Court held that the State's pre-removal procedures are constitutionally defective, and that,

"before a, foster child can be peremptorily transferred . . . to another foster home or to the natural parents . . . The is entitled to [an administrative] hearing at which all concerned parties may present any relevant information. . . ."

Such a hearing would be held automatically, and before an officer free from contact with the removal decision who could order that the child remain with the foster parents. Appellees contended that, when a child has lived in a foster home for a year or more, a psychological tie is created between the child and the foster parents that constitutes the foster family the child's "psychological family," giving the family a "liberty interest" in its survival as a unit that is protected by the Fourteenth Amendment. The District Court, avoiding the "novel" question of whether the foster home is entitled to the same constitutional deference as the biological family, held that the foster child had an independent right to be heard before being condemned to suffer "grievous loss."


1. The District Court erred in finding that the "grievous loss" to the foster child resulting from an improvident removal decision implicated the due process guarantee, as the determining factor is the nature of the interest involved, rather than its weight. Meachum v. Fano, 427 U. S. 215, 427 U. S. 224; Board of Regents v. Roth, 408 U. S. 564, 408 U. S. 570-571. Pp. 431 U. S. 840-841.

2. The challenged procedures are constitutionally adequate even were it to be assumed that appellees have a protected "liberty interest" under the Fourteenth Amendment. The procedures employed by the State and New York City satisfy the standards for determining the sufficiency of procedural protections, taking into consideration the factors enumerated in Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Pp. 431 U. S. 847-856.

418 F.Supp. 277, reversed.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 431 U. S. 856.

Page 431 U. S. 818

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