Joyner by Lowry v. Dumpson, 707
| Citation | 712 F.2d 770 |
| Decision Date | 29 June 1983 |
| Docket Number | No. 707,D,707 |
| Parties | Jay Andrew JOYNER, By his attorney and next friend, Marcia Robinson LOWRY, and John Marshall, by his attorney and next friend, Marcia Robinson Lowry, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. James DUMPSON, Individually and as Administrator of the New York City Human Resources Administration, and as Commissioner of the New York City Department of Social Services, Carol Parry, Individually and as Assistant Administrator for special services for children; Bernard Shapiro, Individually and as Executive Director of the New York State Board of Social Welfare; and Barbara Blum, Individually and as Commissioner of the New York State Department of Social Services, Defendants, Barbara Blum, Commissioner of the New York State Department of Social Services, Defendant-Appellant. ocket 82-7683. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Amy Juviler, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Andrea Green, Asst. Atty. Gen., State of N.Y., New York City, of counsel), for defendant-appellant.
George Kannar, Children's Rights Project, American Civil Liberties Union, New York City (Marcia Robinson Lowry, Children's Rights Project, American Civil Liberties Union, New York City, of counsel), for plaintiffs-appellees.
Before MANSFIELD and MESKILL, Circuit Judges, and NEAHER, * District Judge.
This is an appeal from a successful challenge in the United States District Court for the Southern District of New York, Gagliardi, J., to the constitutionality of sections 358-a and 384-a of the New York Social Services Law (McKinney Supp.1982) which require that parents who wish to obtain state-subsidized residential care for their children must transfer temporary custody of the children to the state. The plaintiffs' class is composed of approximately 5,000 New York children in need of special residential services 1 whose parents cannot afford the cost of such out-of-home treatment. Joyner v. Dumpson, 75 Civ. 35 (S.D.N.Y. Oct. 22, 1975) (). Plaintiffs brought a declaratory judgment action alleging that sections 358-a and 384-a, 2 both facially and as applied, violate their substantive due We disagree with both of the district court's conclusions. We hold that the custody transfer requirement does not violate the Rehabilitation Act because it does not discriminate against handicapped children "solely on the basis of their handicaps." 29 U.S.C. § 794 (Supp. V 1981). Accordingly, we reverse the district court's grant of plaintiffs' motion for summary judgment and grant defendants' cross-motion for summary judgment on this claim. Furthermore, we cannot conclude that the custody transfer requirement infringed plaintiffs' right to "family integrity" because it was the parents' voluntary decision to place their children in state-funded homes rather than the state's action that disrupted the protected relationship between parent and child. However, as to the constitutionality of New York's custody transfer requirement as applied, genuine issues of material fact exist which render this issue unsuitable for summary adjudication. Consequently, we remand for trial the question of whether New York's application of the custody transfer requirement deprived plaintiffs of their substantive due process rights.
process rights protected by the Fourteenth Amendment to the United States Constitution, violate Title IV of the Social Security Act, 42 U.S.C. § 601 et seq. (Social Security Act), and violate section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1981) (Rehabilitation Act). The district court granted plaintiffs' motion for partial summary judgment and denied defendant New York Social Service agencies' cross-motion for partial summary judgment on the grounds that the custody transfer requirement discriminated against handicapped children by denying them access to residential care at state expense in violation of the Rehabilitation Act and infringed the plaintiffs' fundamental right to "family integrity" without sufficient justification, thereby violating their substantive due process rights under the Fourteenth Amendment. 3 Joyner v. Dumpson, 533 F.Supp. 233, 242 (S.D.N.Y.1982)
Reversed and remanded.
A brief outline of New York's foster care system is a necessary preface to a discussion of the constitutional and statutory issues that we must decide. The New York Social Services regulations define "foster care" as "all activities and functions provided relative to the care of a child away from his home 24 hours per day in a duly licensed or certified facility." N.Y.Admin.Code tit. 18, § 427.2 (1982). Parents may voluntarily place their children in "substitute homes," and, in fact, most children who enter foster care in New York City are voluntarily placed. See Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 824 & n. 9, 97 S.Ct. 2094, 2099 & n. 9, 53 L.Ed.2d 14 (1977); In re Roxann Joyce M., 99 Misc.2d 390, 392-93, 417 N.Y.S.2d 396, 398 (Fam.Ct.1979), rev'd on other grounds, 75 A.D.2d 872, 428 N.Y.S.2d 264 (App.Div.1980). Voluntary placement is a two-part process. First, the parent and a local social services official enter into a "voluntary placement agreement" (VPA) which transfers care and custody of the child from the parent to an authorized child welfare agency and which sets forth the terms and conditions of the child's care. N.Y.Soc.Serv.Law § 384-a (McKinney Supp.1982). Thereafter, the social services official must obtain judicial approval of the VPA if he expects that the child will remain in custody for more than thirty days. N.Y.Soc.Serv.Law § 358-a (McKinney Supp.1982).
Parents are allowed to designate in the VPA a date for the return of their child. The agency is required to return the child at such time unless prohibited by court order or unless the parent is incapacitated or unavailable. See Ruth "J" v. Beaudoin, 55 A.D.2d 52, 54, 389 N.Y.S.2d 473, 474 (App.Div.1976). Moreover, upon written notice to the agency, the parent may request the return of the child at any time prior to the date identified in the VPA. The agency must respond within ten days after receiving this request, but is empowered to deny early return of the child. If denied, the parent can petition the family court for an order to show cause or institute a habeas corpus proceeding in family court or in the supreme court. See N.Y.Soc.Serv.Law §§ 358-a(7), 384-a(2)(a) (McKinney Supp.1982); N.Y.Admin.Code tit. 18, § 430.5 (1982).
In drafting the VPA, the social services official must ensure that the parent is advised of all of his rights, including the right to designate a return date, the right to supportive services, to visit the child and to have the child returned and the right to consult an attorney at any time including prior to the signing of the VPA. N.Y.Soc.Serv.Law § 384-a(2)(c)(i), (ii), (v) (McKinney Supp.1982). See In re Roxann Joyce M., 99 Misc.2d at 395-96, 417 N.Y.S.2d at 400. The parent must also be made aware of his obligation "(A) to visit the child, (B) to plan for the future of the child, (C) to meet with and consult the agency about such plan, (D) to contribute to the support of the child to the extent of his or her financial ability to do so, and (E) to inform the agency of any change of name and address." N.Y.Soc.Serv.Law § 384-a(2)(c)(iii) (McKinney Supp.1982).
Following execution of the VPA, if the social services official believes the child is likely to remain in state care in excess of thirty days, the official must petition the local family court judge to approve the VPA. N.Y.Soc.Serv.Law § 358-a(1) (McKinney Supp.1982). The judge must be satisfied that (1) the parent "knowingly and voluntarily" executed the VPA; (2) the parent was "unable to make adequate provision for the care, maintenance and supervision" of the child at home; (3) the requirements of section 384-a, if applicable, have been satisfied; (4) "the best interest and welfare of the child would be promoted by removal of the child from such home, and that it would be contrary to the welfare of such child for him to continue in such home." N.Y.Soc.Serv.Law § 358-a(3) (McKinney Supp.1982). If the judge believes that the petition satisfies these four prerequisites, he shall "grant the petition and approve such instrument and the transfer of the ... care and custody of such child to such social services official." N.Y.Soc.Serv.Law § 358-a(3) (McKinney Supp.1982). The statute further provides that any order of a family court judge granting or denying a petition for transfer or return of custody shall be appealable. N.Y.Soc.Serv.Law § 358-a(8) (McKinney Supp.1982).
The plaintiffs' summary judgment motion asserted that New York's custody transfer requirement denied them benefits on the basis of their handicaps in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1981), because it deterred parents from placing their children in residential care and therefore adversely impacted on handicapped children. The district court found that plaintiffs had indeed established a prima facie case of handicap discrimination in violation of the Rehabilitation Act. As a result, the burden of proof shifted to the state to show substantial justification for the custody transfer requirement. See New York State Association for Retarded Children, Inc. v. Carey, 612 F.2d 644, 649 (2d Cir.1979) (). Upon finding that the defendants failed to carry this burden, the court ruled that "the requirement that custody be...
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