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January 19, 1977

George and Larry "CHILD" et al., Plaintiffs,
Abraham BEAME, etc., et al., Defendants

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD


EDWARD WEINFELD, District Judge.

 This action was brought by a self-designated "next friend" on behalf of five black children who have been the legal responsibility of the New York City Department of Social Services. The Department placed the children with authorized child-care agencies, which had the immediate responsibility for their welfare and foster care. The children, who have been in the New York City child-care system under foster care for varying periods of time, have not been referred for adoption, although it is asserted their relationship with their natural parents has been or could be legally terminated. *fn1" The basic claim, however variously phrased, is that the defendants, acting singly or in concert, have engaged in a practice, policy and custom of racial discrimination which has denied the five named plaintiffs access to adoption equal to that of white children, and thus denied them a stable, permanent home by keeping them in their temporary foster homes during their entire childhood. This denial was allegedly effectuated by defendants' arbitrary and discriminatory practices, viz., (1) failing to make plaintiffs "legally free" for adoption *fn2" either through appropriate court proceedings or by obtaining an unconditional surrender from their natural parents; (2) failing to refer plaintiffs to a licensed adoption division operated by a defendant or by any other authorized child-care agency; and (3) failing vigorously to seek a permanent preadoptive or adoptive home with persons available and willing to adopt the plaintiffs -- in sum, the claim is that were the plaintiffs white children they would have been adopted long ago.

 It is alleged that these practices, customs and policies violate plaintiffs' constitutional rights under the First, Eighth, Ninth and Fourteenth Amendments of the Federal Constitution and violate their statutory rights under Title VI of the Civil Rights Act of 1964. Declaratory and injunctive relief and damages are sought under 42 U.S.C., sections 1983, 1985, 1986 and 2000d, and 28 U.S.C., sections 2201 and 2202. Jurisdiction is asserted under 28 U.S.C., section 1343(3) and (4), as well as under 28 U.S.C., section 1331(a) on allegations that the matter in controversy involves a sum in excess of $10,000.

 The plaintiffs Larry and George "Child" are brothers and were born, respectively, on March 4, 1962 and March 4, 1963. They have been in the New York City child-care system from on or about November 10, 1963 to the present. Plaintiffs Michelle and David "Child" are sister and brother, and were born, respectively, on May 11, 1962 and March 12, 1964. They have remained continuously in the New York City childcare system from on or about August 11, 1966 to the present. Plaintiff Mona "Child" was born on April 13, 1960 and has been in the New York City child-care system from February 4, 1966 to the present.

 All five children, from the commencement of this action to the present, have been under the care and responsibility of the defendant Abbot House, a voluntary child-care agency. At various times prior thereto they were under the care and responsibility of the defendants Windham Children's Services and Child Care Agency or Sheltering Arms Children's Services, also voluntary child-care agencies. The defendants are these child-care agencies and their executive directors; also, the New York City Commissioner of Social Services and other city officials responsible for the childcare program; and the New York State Department of Social Services and officers of that Department who under state law have general supervision of local child-care and adoption agencies.

 The foster homes and the executive directors deny the alleged policy, custom or practice; they deny discrimination on the basis of race; they contend that the actions taken by them as to each child plaintiff were based on providing the best opportunities for the child's growth and development.

 The New York City Commissioner of Social Services and other city defendants assert that annually they have authorized and approved each plaintiff's placement in a foster home on an equal basis with all children placed in the care of voluntary childcare agencies, regardless of race; they deny that the annual reauthorization of plaintiffs' placement reflects discriminatory treatment or was undertaken in a discriminatory manner; to the contrary, they assert it was made pursuant to practice and policies applied equally to all children subject to placement with child-care agencies, regardless of race. These defendants further deny that they have taken any action or failed to take any action, either individually or in concert with other defendants, to deprive plaintiffs of their constitutional or statutory rights.

 The state defendants disavow any statutory duty to run checks or examine the files of individual plaintiffs; they contend that they are required by law to make general inspection of voluntary agencies and to supervise the administration of the New York City child-care system by Special Services for Children, *fn3" which is a division of the Human Resources Administration within the New York City Department of Social Services, the agency with overall responsibility for providing services for New York City children in need of care. *fn4" Finally, the state defendants also deny that, either individually or in concert with any other defendant, they acted or failed to act so as to deprive any plaintiff of his or her constitutional or statutory rights.

 This action was originally commenced as a class action by plaintiffs on behalf of themselves and other black children similarly situated. Plaintiffs also advanced claims on behalf of black and white children in foster homes charging violations of purported constitutional and statutory rights to adoption. This Court dismissed the latter claims and denied class certification, but allowed the action to proceed as to the five named plaintiffs upon the basis of an amended pleading charging racial discrimination. *fn5" Subsequently the complaint was dismissed as to all defendants except those referred to above. *fn6" Familiarity is assumed with the matters referred to in these opinions. *fn7"

 At trial, plaintiffs offered far-ranging proof, much of it extending well beyond the claim that the failure to free these five "Child" plaintiffs for adoption and to place them with adoptive parents was racially motivated or discriminatory. Since the trial was to the Court, practically all proffered evidence was received, but the Court noted several times that only evidence relevant to the issues under the amended complaint would be considered. *fn8" The bulk of evidence concerns child-care, foster-care and adoption practices, customs and procedures, mainly in the City of New York, and problems arising therefrom. To the extent that such evidence is relevant to the issues in this case, the Court has given it due consideration. However, much of the other evidence has no bearing, direct or indirect, on the issue of racial discrimination against these five plaintiffs.

 Plaintiffs presented the opinions of various experts who sharply criticized the practices of the state, city and authorized childcare and adoption agencies as inadequate to meet the needs of black children for permanent placement with adoptive families. Their observations were directed to alleged shortcomings and weaknesses of administrative practices and review procedures. Their criticisms in large measure were directed to alleged deficiencies in adoptive planning and placement that were endemic to the child-care system. The conflicting philosophies between public interest groups, on the one hand, and those charged with the administration of the child-care laws and the day-to-day responsibility for foster children, on the other hand, came into sharp focus. Plaintiffs' experts felt a better job could be done through more vigorous programs to obtain permanent adoptive homes, particularly for black children. As in the instance of most bureaucratic programs, there is probably room for improvement. Indeed, the record reflects continuing concern of those charged with responsibility for the care and welfare of children in the child-care system to place them promptly in available adoptive homes when reunion with the natural parents is not feasible and the family cannot be reconstituted.

 The problem is difficult and extraordinarily complex. A hard fact that cannot be ignored, however, is that a far greater number of black children than white children are in foster care, yet the number of black families with whom such children might potentially be placed for adoption is much smaller than the corresponding number of white families in the general population. Entirely apart from this, social and economic pressures on minority families, which are more likely to accept black children for adoption, make it more difficult for such families to take adoptive children into their homes. With the passage of time, the state and city administrators, as well as voluntary agencies, on their own initiative or under the spur of criticism by public interest groups and the legislature, have applied innovative methods to stimulate a greater pool of available and qualified potential adoptive parents and to eliminate barriers to adoption. These efforts have included bilingual publicity programs, use of television, radio and news media, "photo-listing" of available children, subsidy payments to encourage low-income families to provide adoptive homes, increased reimbursement payments to agencies for placement of children and extensive outreach activities. The various programs were geared to encourage adoption of "hard to place" children.

 The dogmatic view of some of plaintiffs' experts, whatever their enthusiasm, that all foster care children, regardless of individual problems and needs, can successfully be placed for adoption is unrealistic and disregards substantial evidence that black children are harder to place for adoption than white children. Conceptual theories of these experts, who without administrative responsibility advocate methods to achieve ultimate perfection in adoptive placement, must yield to the reality of fact and experience. We deal with children who are scarred almost from birth and who ofttimes present difficult personal, mental, physical, emotional and behavioral problems, precluding ready adjustment to new familial relationships. These children are human beings, not statistics. As this Court stated in its prior opinion: "Each adoption presents individual problems related to the particular child, its natural parents and its proposed adoptive parents. . . . [Adoption] requires adoptable children and families willing and able to take children into their homes, which obviously varies from case to case." *fn9" As the Court observed several times in admitting questionable evidence, it was not sitting as a legislative oversight committee to ...

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