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February 20, 1976

GEORGE and LARRY CHILD et al., Plaintiffs
ABRAHAM BEAME, Individually and as Mayor of the City of New York et al., Defendants

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

 This is a class action for declaratory and injunctive relief and damages pursuant to 42 U.S.C., sections 1983, 1985 and 1986, and 28 U.S.C., sections 2201 and 2202, to redress rights guaranteed by the First, Eighth, Ninth and Fourteenth Amendments and Title IV of the Social Security Act. Jurisdiction is grounded upon 28 U.S.C., sections 1331(a), 1343(3) and (4).

 The action was commenced by five plaintiffs, children between the ages of eleven and fourteen, all of whom are described by the surname "Child" (admittedly fictitious), on their own behalf and on behalf of all others similarly situated, through their "next friend," Monroe Freedman. The class includes New York City children whose relationship with their natural parents has been or would be legally terminated if appropriate legal action were taken, and who, under New York State's Social Services Law, have been placed, and now are, in the care and custody of New York City authorized child-care agencies. The defendants, in addition to state and local officials who are charged under state law with various duties with respect to child-care agencies, include the administrators or executive directors of virtually every Catholic, Protestant, Jewish and nonsectarian child-care facility in the Greater New York Metropolitan Area.

 However phrased in the voluminous complaint, plaintiffs' various claims are based upon a central charge that the defendants, jointly and severally, engaged in a custom, pattern and practice and pursued a deliberate policy of keeping plaintiffs and members of their class in temporary foster care settings for their entire childhoods without vigorously seeking to obtain permanent adoptive parents for them, although such adoptive homes could be found, thereby depriving them of a fundamental right to a permanent stable home in violation of one or more of their federally protected constitutional rights. The alleged policy of defendants is attributed to, among other reasons, a purpose on the part of the defendants to receive financial benefits from the state and federal governments while the children remain in their custody. Plaintiffs allege that members of their class comprise over 5,000 and that they also represent a sub-class within that group of non-white children who "are more likely" to be denied their constitutional right to a permanent stable home by defendants than are white children.

 The relief sought is (1) a declaratory judgment and injunction against the defendants' alleged practice of keeping plaintiffs and members of their class in a variety of temporary foster care settings for their entire childhoods without vigorously seeking to obtain for them permanent adoptive homes; (2) compensatory and punitive damages against the state, the city and the agency administrators for willfully violating plaintiffs' constitutional and federal statutory rights.

 The nature of the charges, which include malicious motives of selfish financial gain, has stirred deep resentment, particularly on the part of the administrator defendants, who feel that their dedicated efforts through the years in attempting to provide adoptive homes for abandoned, neglected or abused children have been unfairly distorted in an effort to pose an abstract constitutional claim and not in the best interests of all the children or their welfare.

 Thus, several defendants, entirely apart from any challenge to the complaint itself, move to dismiss on various lack of standing grounds. They initially charge that Monroe Freedman, described as the "next friend" of plaintiff children, a lawyer and dean of Hofstra Law School, in fact is not their "next friend" and lacks standing to sue under Rule 17(c) of the Federal Rules of Civil Procedure. These defendants further charge that Ms. Marcia Robinson Lowry and Mr. Peter Bienstock, attorneys associated with the New York Civil Liberties Union, who represent the plaintiff Freedman, by reason of their conduct attendant upon the commencement of this suit, cannot certify that there is good ground to support the complaint; accordingly they also move to dismiss under Rule 11 of the Federal Rules of Civil Procedure. It is desirable first to consider these motions, since if either is upheld there is no occasion to reach the merits of the issues posed by the complaint, dismissal of which is sought by most of the defendants.



 The challenge to the "next friend" and his attorneys centers about events which occurred in or about November and December, 1974 at Abbott House, a childcare agency defendant herein, where the five child plaintiffs were then in institutional care. The essence of the charge is that Charles Awalt, the then executive director of Abbott House, permitted Ms. Lowry and Mr. Bienstock to inspect the confidential files of all children then in institutional care at Abbott House; that thereafter Mr. Awalt arranged for the lawyers to interview the five named plaintiffs; and that the interviews were conducted without the presence or knowledge of the Abbott House staff, with the possible exception of Mr. Awalt, who it is alleged had no immediate case responsibility for any of the five children. It is further alleged upon information and belief that Monroe Freedman has never met any of the five children, has never visited Abbott House nor communicated with any one on its staff. The clear implication is that Mr. Awalt not only exceeded his authority in making Abbott House files available, but violated its right to preserve the confidentiality of its records of the children under its care, as well as the children's right of privacy as to information contained therein.

 In opposition, the plaintiffs submit the affidavit of Mr. Awalt. His version of events is that he was concerned with children who grew up in foster care without being referred for adoption and without adoptive homes being sought for them; that this led him to enlist Ms. Lowry's interest; that he permitted her to examine the files of Abbott House so that she could talk to children who had been in foster care for some time, who had no contact with their natural parents and who expressed their willingness to talk to a lawyer; that the files disclosed the names of the five child plaintiffs who, upon subsequent interviews with Ms. Lowry and Mr. Freedman, consented that they proceed with the class action suit. Mr. Awalt, while acknowledging that the child-care agency records are governed by a rule of confidentiality, states he authorized Ms. Lowry and Mr. Bienstock to look at the records of children at Abbott House and did so with the understanding that their contents would not be revealed and would be used only with the consent of the children involved; further, that, as executive director of Abbott House, he was responsible for the well being of those children and he believed his action was in their best interests.

 Mr. Freedman has submitted an affidavit in which he disputes the movants' "upon information and belief" allegation that he has never met the children. He swears that he did meet and speak with the child plaintiffs in December 1974 and early January 1975; that they described their experiences in foster care and expressed their desires to have parents of their own with whom they could live; that he explained to them the nature of the action to establish the right of adoption for them and other children similarly situated; and that all indicated their desire to participate in a lawsuit with him as their spokesman and Ms. Lowry as their lawyer.

 We first consider the defendants' charge that the children were made plaintiffs by conduct which violated their rights and which cannot confer standing upon them to maintain this action. The contention here is that the examination of the files by the attorneys infringed on the privacy of the five child plaintiffs and on the privacy of the other children whose files also were examined, and further was a violation of the policies of Abbott House concerning the confidentiality of its records. However, the affidavits submitted make it clear that Ms. Lowry and Mr. Bienstock were invited to examine the records by Mr. Awalt; that their purpose in so doing, as well as the prospect of litigation was known to Mr. Awalt; and that Fred Lesny, the then Director of Social Services at Abbott House and the custodian of the records who permitted the inspection, also knew that the attorneys were associated with the Civil Liberties Union and was not unaware of their purpose in making the examination. Mr. Lesny concedes it was he who authorized Mr. Awalt to make the records available to the attorneys. If there was a breach of the internal rules of Abbott House with respect to the confidentiality of files, this is a matter that relates to the two officials there -- that is, Mr. Lesny and Mr. Awalt -- which cannot be attributed to either of the attorneys, whose actions were open and above board. Under the circumstances, the claim that the children were made plaintiffs by conduct which violated their rights and thereby forecloses their standing to maintain this action must fail.

 Next, the movants challenge on a different ground both Mr. Freedman's standing, as well as that of the children, to bring this action. Here they urge that the use of the children's names as plaintiffs was contrived; that in reality, based upon the facts referred to above, Freedman is not their "next friend"; that the real plaintiffs are Freedman and the Civil Liberties Union; that Freedman's role as "next friend" and the use of the children as plaintiffs are solely to confer jurisdiction upon this court to obtain an adjudication of questions of federal constitutional law desired by persons who otherwise would have no standing to raise these issues. The argument proceeds that neither Freedman nor the children have standing to sue since they are not plaintiffs in the sense that the complaint contains no specific allegations of conduct of defendants in relation to them -- rather the complaint contains only general allegations of wrongs universally suffered by children in foster care. Accordingly, it is argued that the complaint should be dismissed.

 Rule 17 *fn1" of the Federal Rules of Civil Procedure provides that an infant may sue by his "next friend" or by a guardian ad litem. No guardian ad litem has been appointed for the infant plaintiffs, nor has an application been made for such appointment; and it is alleged that their natural parents have abandoned all interest in them. The Rule does not describe who qualifies as "next friend." The term is broad enough to include any one who has an interest in the welfare of an infant who may have a grievance or a cause of action. Here Freedman did not know the children until his aid was enlisted by the Civil Liberties Union. While Freedman may well be interested in establishing a constitutional base for the children's claims, this is not to say he is less interested in their welfare. While one may question just how much the children, all between the ages of eleven and fourteen years, understood when Mr. Freedman explained to them the purpose of the class action to establish a constitutional right to adoption, it can hardly be doubted that under the circumstances of the interviews they expressed desires for a permanent home. In any event, nothing has been presented on this record to impugn his good faith or that of his attorneys in their discussions with the children or to indicate they did not authorize him as "next friend" and Ms. Lowry as their attorney *fn2" to proceed with this action to vindicate their claim. The right of access to courts by those who feel they are aggrieved should not be curtailed; and this is particularly so in the instance of children who, rightly or wrongly, attribute such grievances to their very custodians. Those who propose to speak for the plaintiffs have manifested an interest in their welfare and should, under the circumstances here presented, be allowed to proceed.

 As to the further claim that there is lack of standing to sue because the complaint contains no specific allegation of conduct toward each of the five child plaintiffs by its child-care agency, this contention ignores the specific allegations of the complaint. These charge that defendants followed a custom, pattern and practice of keeping plaintiffs and members of their class in temporary foster care settings for their entire childhoods without vigorously seeking to obtain permanent adoptive homes for them. While it is true these are general allegations, they apply to plaintiffs as well as to all children under foster care. Thus, accepting, as we must, that the allegations are true, the custom, pattern and ...

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