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January 13, 1969

Dwight BOONE, individually and on behalf of all others similarly situated, by his next friend Walter Boone, Plaintiff,
George K. WYMAN, as Commissioner of the Department of Social Services of the State of New York; Jack Goldberg, as Commissioner of the Department of Social Services of the City of New York; Elizabeth C. Geine, as Director of the Bureau of Child Welfare of the City of New York; and Winnie Siegel, as Caseworker of the Bureau of Child Welfare of the City of New York, Defendants

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

 This is a purported class action by plaintiff Dwight Boone (suing in forma pauperis by his father pursuant to order of this Court) (1) for a declaratory judgment that enforcement of certain New York State statutes by defendants denies due process, (2) for an injunction restraining further enforcement of these statutes, and (3) for the convening of a three-judge court pursuant to Title 28 U.S.C. §§ 2282 and 2284. Plaintiff has also moved for preliminary injunctive relief pursuant to Rule 65, F.R.Civ.P., and defendants have moved to dismiss the complaint pursuant to Rule 12(b)(1), F.R.C.P., for lack of jurisdiction over the subject matter.

 Plaintiff Boone, approximately 17 years of age, asserts that he is the father of an illegitimate child, Lawrence Brown, born to one Gwendolyn Brown, age 16 on May 6, 1968. On June 5, 1968 the young mother, then in custody of the infant, voluntarily placed the child in the custody of the Commissioner of Social Services of the City of New York pursuant to written authorization executed by her, which authorized the Commissioner to place the child for foster care with any duly authorized agency as defined in the Social Services Law of the State of New York, McKinney's Consol.Laws, c. 55. The agreement was entered into by the mother voluntarily and with full knowledge of the nature and legal consequences of the instrument. Her reason for executing it was that she was unable to provide for the well-being and maintenance of the infant, since the apartment in which she lived with her mother, 3-year old sister and 10-year old cousin, was too small to accommodate the infant. However, it was anticipated that by the beginning of 1969 the Brown family would move to a larger apartment, at which time the mother would resume custody, the agreement of commitment executed by her having retained her right to return of custody upon her being able to provide for the child's well-being. In the meantime the mother has visited the child and maintained her interest and intent to regain custody.

 Prior to the institution of the present action Boone, the putative father, had neither executed an acknowledgment of paternity nor contributed to the support and well-being of the child. On July 30, 1968 his attorney wrote a letter on his behalf to the Department of Social Services requesting custody of the child. When custody was not given to him, he commenced the present action. He personally has neither assets nor income to support the child, but his father and mother, with whom he lives, state that they would support, care for, and raise the child. Plaintiff's claim, broadly stated, is that he has been and is being deprived of his right to custody of the child in a manner that denies due process of law.

 One Lourdes Gonzalez, 18-year old mother of an illegitimate child born on June 8, 1966 and presently in the custody of the same City department pursuant to an authorization similar to that executed by Gwendolyn Brown, which Miss Gonzalez executed on June 25, 1966, has moved to intervene. Her child was born at a pre-natal shelter in the New York Infirmary when she was 15 years of age and Edward Justiniano, the acknowledged father, was 14 years old and a student in the eighth grade. She asserts that she was induced to sign the authorization for placement of her child in foster care by a statement by a representative of the Bureau of Child Welfare that she would be given the return of custody when she wanted the child but that she has since been told by a case worker that she cannot regain custody until she marries Justiniano, who will not marry her, and she is being refused custody even though she and her foster parents have adequate facilities to care for the child. These assertions are sharply disputed by defendants who assert that upon her request in January 1967 custody of the child was given to one Carmine Adorno who cared for the child until April 26, 1967, when the child was returned to the New York Foundling Hospital because Miss Adorno could no longer care for it, and that when plaintiff-intervenor again requested custody in September 1967, representatives of the authorized agency, the New York Foundling Hospital, visited plaintiff-intervenor at the apartment where she lives with her foster parents, found her to be very immature and not receiving proper guidance from the latter because of their age (78 years and 62 years, respectively) and physical condition, and that plaintiff-intervenor was unable to provide adequate care for the infant. They recommended that she take a course on child care, but she refused. However they are working toward discharge of the infant as soon as plaintiff-intervenor can properly care for it.

 Plaintiffs seek to attack the constitutionality of § 383 and § 384 of the Social Services Law. Section 384 provides in pertinent part that:

"The guardianship of the person and the custody of a destitute or dependent child may be committed to an authorized agency * * * by a written instrument which shall be known as a surrender, and signed:
* * *
"(c) * * * if such child is born out of wedlock, by the mother of such child; * * *."

 Section 383 provides in part that:

"The parent of a child remanded or committed to an authorized agency shall not be entitled to the custody thereof, except upon consent of the court, public board, commission or official responsible for the commitment of such child, or in pursuance of an order of a court or judicial officer of competent jurisdiction, determining that the interest of such child will be promoted thereby and that such parent is fit, competent and able to duly maintain, support and educate such child."

 Both parties agree that custody of the children involved has been committed to an authorized agency and that, therefore, the provisions of § 383 are relevant. Examination of the instruments executed by plaintiffs and comparison with the form and procedure used to effectuate a commitment pursuant to § 384, however, reveals that the children were not committed pursuant to § 384, which provides for permanent commitment, but pursuant to § 398(5)(a), which empowers certain authorized officials to

"Provide care in a family free or boarding home, in an agency boarding home or in an institution for any child born out of wedlock * * * when in the judgment of such commissioner of public welfare or public welfare officer needed care cannot be provided in the mother's own home."

 It is not clear whether the commitment of the children here was effected pursuant to a state-wide policy in the application of § 398(5)(a) or under local regulations implementing that section.* For present purposes, however, the more significant factor is that the authorization executed by the mothers in custody did not give guardianship rights or permanent custody to the Commissioner of Social Services. Each mother retained the right to regain custody of the child when she was able to provide for its well-being. Under the circumstances plaintiffs have no standing to raise the ...

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