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

The Court’s opinion seems to indicate that there is no reason to distinguish between the claims of the foster parents and the foster children, either because the parents have standing to assert the rights of the children or because the parents’ interest is identical to that of the children. See ante, at 841-842, nn. 44, 45. I cannot agree. First, it is by no means obvious that foster parents and foster children have the same interest in a continuation of their relationship. When the child leaves the foster family, it is because the agency with custody of him has determined that his interests will be better served by a new home, either with his natural parents, adoptive parents, or a different foster family. Any assessment of the child’s alleged deprivation must take into account not only what he has lost, but what he has received in return. Foster parents, on the other hand, do not automatically receive a new chjld with whom they will presumably have a more profitable relationship. Second, unlike the situation in Craig v. Boren, 429 U. S. 190, 195-196, this is not a case where the failure to grant the parents their requested relief will inevitably tend to “[dilute] or adversely [affect]” the alleged constitutional rights of the children. Denying the parents a hearing simply has no effect whatever on the children’s separate claim to a hearing, and does not impair their alleged constitutional rights. There is therefore no standing in the parents to assert the children’s claims. See Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423, 432 (1974), cited in Craig, supra, at 195. I would nevertheless consider both the parents’ and the children’s claims in these eases, but only because the suit was originally brought on *858behalf of both the parents and the children, all of whom were parties plaintiff. While it is true that their interests may conflict, there was no reason not to allow counsel for the parents to continue to represent the children to the extent that their interests may be compatible. The conflict was avoided by the District Court’s appointment of independent counsel, who took a position opposite to that of the foster parents as to where the children’s welfare lay. The appointment of independent co'unsel, however, should not have left the children without advocacy for the position, right or wrong, that they are entitled to due process hearings. That position should have been left to be asserted by the counsel who originally brought the suit for the children. My view, therefore, is that the parents and the children are properly before the Court and entitled to assert their own separate claims, but that neither group has standing to assert the claims of the other.

“That the Sanders have given Laura a good home and have shown her great love does not stamp as an abuse of discretion the Trial Justice’s determination to take her from them. Indeed, it is the extreme of love, affection and possessiveness manifested by the Sanders, together with the conduct which their emotional involvement impelled, that supplies the foundation of reasonableness and correctness for his determination. The vital fact is that Mr. and Mrs. Sanders are not, and presumably will never be, Laura’s parents by adoption. Their disregard of that fact and their seizure of full parental status in the eyes of the child might well be, or so the Trial Justice was entitled to find, a source of detriment to the child in the circumstances presented.” 5 N. Y. 2d., at 229, 156 N. E. 2d, at 703.

The consequences of extending constitutional protection to the foster family relationship are, as the Court points out, ante, at 846-847, especially absurd when the child would otherwise be immediately returned to his natural parents. If the foster family relationship were to occupy the same constitutional plane as that of the natural family, the conflict between the constitutional rights of natural and foster parents would be totally irreconcilable.

Joint App. to Jurisdictional Statements 54a. See Organization of Foster Families v. Dumpson, 418 F. Supp. 277, 278 (SDNY 1976).

Intervenor Naomi Rodriguez, who is blind, placed her newborn son Edwin in foster care in 1973 because of marital difficulties. When Mrs. Rodriguez separated from her husband three months later, she sought return of her child. Her efforts over the next nine months to obtain return of the child were resisted by the agency, apparently because it felt her handicap prevented her from providing adequate care. Eventually, she sought return of her child in the state courts, and finally prevailed, three years after she first sought return of the child. Rodriguez v. Dumpson, 52 App. Div. 2d 299, 383 N. Y. S. 2d 833 (1976). The other named intervenors describe similar instances of voluntary placements during family emergencies followed by lengthy and frustrating attempts to get their children back.

The intervening natural parents argue in this Court that the District Court erred in not permitting them to raise certain defenses. In view of our disposition of the case, we find it unnecessary to reach this issue.

In an opinion handed down at the same time as its decision on the merits, the District Court granted class certification to appellee foster parents, the named children, and the intervening natural parents. Joint App. to Jurisdictional Statements 42a. See Organization of Foster Families v. Dumpson, supra, at 278 n. 3. Appellants in No. 76-5193 challenge the class certification of the children. We perceive no error.

The term “foster care” is often, used more generally to apply to any type of care that substitutes others for the natural parent in the parental *824role, including group homes, adoptive homes, and institutions, as well as foster family homes. A. Kadushin, Child Welfare Services 355 (1967) (hereafter Kadushin). Cf. Mnookin, Foster Care — In Whose Best Interests?, 43 Harv. Educ. Rev. 599, 600 (1973) (hereafter Mnookin I). Since this case is only concerned with children in foster family homes, the term will generally be used here in the more restricted sense defined in the text.

The record indicates that as many as 80% of the children in foster care in New York City are voluntarily placed. Deposition of Prof. David Fanshel, App. 178a. But cf. Child Welfare Information Services, Characteristics of Children in Foster Care, New York City Reports, Table No. 11 (Dec. 31, 1976). Other studies from New York and elsewhere variously estimate the percentage of voluntary placements between 50% and 90%. See, e. g., Mnookin I 601; Areen, Intervention Between Parent and Child: A Reappraisal of the State’s Role in Child Neglect and Abuse Cases, 63 Geo. L. J. 887, 921-922, and n. 185 (1975); Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U. Pitt. L. Rev. 1,29 (1973).

Experienced commentators have suggested that typical parents in this situation might be “[a] divorced parent in a financial bind, am unwed adolescent mother still too immature to rear a child, or a welfare mother confronted with hospitalization and therefore temporarily incapable of caring for her child.” Weiss & Chase, The Case for Repeal of Section 383 of the New York Social Services Law, 4 Colum. Human Rights L. Rev. 325, 326 (1972). A leading text on child-care services suggests that “[fjamily disruption, marginal economic circumstances, and poor health” *825are principal factors leading to placement of children in foster care. Kadushin 366. Other studies suggest, however, that neglect, abuse, abandonment and exploitation of children, which presumably account for most of the children who enter foster care by court order, see infra, at 828, are also involved in many cases of voluntary placement. See infra, at 834; Kadushin 366.

“Authorized agency” is defined in N. Y. Soc. Serv. Law § 371 (10) (McKinney 1976) and “includes any local public welfare children’s bureau, such as the defendants New York City Bureau of Child Welfare and Nassau County Children’s Bureau, and any voluntary child-care agency under the supervision of the New York State Board of Social Welfare, such as the defendant Catholic Guardian Society of New York.” 418 F. Supp., at 278 n. 5. An amicus curiae brief states that in New York City, 85% of the children in foster care are placed with voluntary child-care agencies licensed by the State, while most children in foster care outside New York City are placed directly with the local Department of Social Services. Brief for Legal Aid Society of City of New York, Juvenile Rights Division, as Amicus Curiae 14 n. 22.

Before enactment of § 384-a in 1975, the natural parent who had voluntarily placed a child in foster care had no automatic right to return *826of the child. If the agency refused consent for the return of the child to the parent, the parent’s only remedy was to seek a writ of habeas corpus. N. Y. Civ. Prac. Law § 7001 et seq. (McKinney 1963); N. Y. Family Court Act §651 (McKinney 1975). When the parent did not invoke this remedy, the child would remain in foster care. See Weiss & Chase, supra, n. 10, at 326-327, 333-334.

The record indicates that at the end of 1973, of 48,812 children in foster care under the supervision of the New York State Board of Social Welfare and the New York State Department of Social Services, 35,287 (about 72%) were placed in foster family homes, and the rest in institutions or other facilities. App. 117a.

Such contractual provisions are apparently also characteristic of foster-care arrangements in other States. See, e. g., Mnookin I 610.

See, e. g., the case of appellees Ralph and Christiane Goldberg, n. *1, supra.* Evidence in the record indicates that as many as one-third of all transfers within the foster-care system are at the request of the foster parents. Affidavit of Carol J. Parry, App. 90a.

The resulting confusion not only .produces anomalous legal relationships but also affects the child’s emotional status. The foster child’s loyalties, 'emotional involvements, and responsibilities are often divided among three adult authority figures — the natural parents, the foster parent, and the social worker representing the foster-care agency. See, *827 e. g., Kadushin 387-389; see also Mnookin I 624; Wald, State Intervention on Behalf of “Neglected” Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan. L. Rev. 623, 645 (1976) (hereafter Wald); E. Weinstein, The Self-Image of the Foster Child 15 (1960).

“Legal custody is concerned with the rights and duties of the person (usually the parent) having custody to provide for the child’s daily needs— to feed him, clothe him, provide shelter, put him to bed, send him to school, see that he washes his face and brushes his teeth.” Kadushin 354^355. Obviously, performance of these functions directly by a state agency is impractical.

“The agency sets limits and advances directives as to how the foster parents are to behave toward the child — a situation not normally encountered by natural parents. The shared control and responsibility for the child is clearly set forth in the instruction pamphlets issued to foster parents.” Id., at 394. Agencies frequently prohibit corporal punishment; require that children over a certain age be given an allowance; forbid changes in the child’s sleeping arrangements or vacations out of State without agency approval; require the foster parent to discuss the child’s behavioral problems with the agency. Id., at 394-395. Furthermore, since the cost of supporting the child is borne by the agency, the responsibility, as well as the authority, of the foster parent is shared with the agency. Ibid.

Voluntary placement in foster care is entirely distinct from the “surrender” of both “the guardianship of the person and the custody” of a child under Soc. Serv. Law § 384, which frees the child for adoption. § 384 (2). “Adoption is the legal proceeding whereby a person takes another person into the legal relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other *828person.” N. Y. Dom. Rel. Law § 110 (McKinney 1964). A child may also be freed for adoption by abandonment or consent. § 111 (McKinney Supp. 1976-1977); Soc. Serv. Law § 384r-b.

“[A]lthough the agency usually obtains legal custody in foster family care, the child still legally ‘belongs’ to the parent and the parent retains guardianship. This means that, for some crucial aspects of the child’s life, the agency has no authority to act. Only the parent can consent to surgery for the child, or consent to his marriage, or permit his enlistment in the armed forces, or represent him at law.” Kadushin 355. But see Soc. Serv. Law § 383-b.

The agreement transferring custody to the agency must inform the parent of these obligations. §§ 384-a (2) (c) (iii), (iv).

The Family Court is also empowered permanently to sever the ties *829of parent and child if the parent fails to maintain contact with the child while in foster care. § 384-b (4)-(7). See supra, at 828, and n. 21.

The record shows that in 1973-1974 approximately 80% of the children removed from foster homes in New York State after living in the foster home for one year or more were transferred to another foster placement. Thirteen percent were returned to the biological parents, and 7% were adopted. Tr. of Oral Arg. 34; Brief for Appellees 20.

This regulation, set out in full in n. 3, supra, was formerly numbered 18 N. Y. C. R. R. §450.14, and is referred to by that number in the opinion of the District Court.

The State argues that while § 450.10 provides minimum requirements for notice to the foster family of the agency’s intention to remove the child and the reasons for that decision, the close contact between the agency and the foster parent insures that in most circumstances the foster parent is informed well in advance of any projected removal. In fact, 18 N. Y. C. R. R. § 606.16 (1976) requires the agency in some circumstances to begin for the discharge of the children from foster care, in cooperation with all parties involved, as early as six months in advance. Brief for Appellants in No. 76-183, pp. 21-23.

This statute is set out in full in n. 3, supra.

A court, however, apparently may grant a stay in some circumstances. See, e. g., In re W., 77 Misc. 2d 374, 377, 355 N. Y. S. 2d 245, 249 (1974).

There is some dispute whether the procedures set out in 18 N. Y. C. R. R. § 450.10 and Soc. Serv. Law § 400 apply in the case of a foster child being removed from his foster home to be returned to his natural parents. Application of these procedures to children who have been placed voluntarily, for example, arguably conflicts with the requirement of § 384r-a (2) (a) that children in that situation be returned to the natural parent as provided in the placement agreement or within 20 days of demand. Similarly, if the child has been ordered returned by a court, it is unclear what purpose could be served by an administrative conference or hearing on the correctness of the decision to remove the child *831from the foster home. Moreover, since the § 400 hearing takes place after removal of the child from the foster home, the hearing would have no purpose if the child has been returned to its parents, since the agency apparently has no authority to take the child back from its parents against their will without court intervention. Nevertheless, nothing in either the statute or the regulations limits the availability of these procedures to transfers within the foster-care system. Each refers to the decision to remove a child from the foster family home, and thus on its face each would seem to cover removal for the purpose of returning the child to its parents. Furthermore, it is undisputed on this record that the actual administrative practice in New York is to provide the conference and hearing in all cases where they are requested, regardless of the destination of the child. In the absence of authoritative state-court interpretation to the contrary, we therefore assume that these procedures are available whenever a child is removed from a foster family home.

SSC Procedure No. 5 is set out in full in App. to Brief for Appellants in No. 76-5193, pp. 54a-65a, and in Jurisdictional Statement of New York City Appellants A8.

The agency is required to initiate such a review when a child has remained in foster care for 18 months, § 392 (2) (a), and if the child remains in foster care, the court “shall rehear the matter whenever it *832deems necessary or desirable, or upon petition by any party entitled to notice in proceedings under this section, but at least every twenty-four months.” §392 (10).

If the agency already has guardianship as well as custody of the foster child, as in the case of a surrender or previous court order terminating the guardianship of the natural parent for neglect, see nn. 19, 22, supra, the court may simply order that the child be placed for adoption, § 392 (7) (d); if the agency does not have guardianship, as in the case of children placed in foster care temporarily either by court order or by voluntary placement, the court may direct the agency to initiate a proceeding to free the child for adoption under §§ 384 — b, 392 (7)(c).

Both the District Court, 418 F. Supp., at 284, and the appellees, Brief for Appellees 70-72, argue that § 392 does not permit the court to enter such an order, citing In re W., supra, at 376, 365 N. Y. S. 2d, at 248. But in that very case, the court ordered that the child remain with the foster family pending exhaustion of the remedies provided by §400, thus essentially converting that hearing into a preremoval remedy. See n. 27, supra. Moreover, other courts have granted such relief. In re S., 74 Misc. 2d 935, 347 N. Y. S. 2d 274 (1973). See also In re Denlow, 87 Misc. 2d 410, 384 N. Y. S. 2d 621 (1976); In re H., 80 Misc. 2d 593, 363 N. Y. S. 2d 73 (1974). This interpretation of the power of the court seems to be fully supported by the broad language of § 392 (7).

For further comment on this point, see Jenkins, Child Welfare as a Class System, in Children and Decent People 3, 11-12 (A. Schorr ed. 1974); Rein, Nutt, & Weiss, Foster Family Care: Myth and Reality, in Children and Decent People 24, 25-29 (A. Schorr ed. 1974) (hereafter Rein, Nutt, & Weiss).

See, e. g., the case of Rafael Serrano, the foster child of appellees Ralph and Christiane Goldberg, n. 1, supra.

Other factors alleged to bias agencies in favor of retention in foster *835care are the lack of sufficient staff to provide social work services needed by the natural parents to resolve their problems and prepare for return of the child; policies of many agencies to discourage involvement of the natural parents in the care of the child while in foster care; and systems of foster-care funding that encourage agencies to keep the child in foster care. Wald 677-679. See also E. Sherman, R. Neuman, & A. Shyne, Children Adrift in Foster Care: A Study of Alternative Approaches 4-5 (1973).

For an ‘example of this problem, see the case of intervenor Naomi Rodriguez, n. 5, supra. Recent legislative reforms in New York that decrease agencies’ discretion to retain a child in foster care are apparently designed to meet these objections. For example, Soc. Serv. Law § 384-a (2) (a) gives parents of children in voluntary foster placement greater rights to the return of their children. Since the statute permits placement agreements of varied terms, however, and since many children in foster care are not voluntarily placed, there may still be situations in which the agency has considerable discretion in deciding whether or not to return the child to the natural parent. The periodic court review provided by § 392 is also intended in part to meet these objections, but critics of foster care have argued that given the heavy caseloads, such review may often be perfunctory. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 (3) Law & Contemp. Probs. 226, 274-275 (1975) (hereafter Mnookin II). Moreover, judges too may find it difficult, in utilizing vague standards like “the best interests of the child,” to avoid decisions resting on subjective values.

The New York Legislature has recognized the merit of this criticism. Social Serv. Law §384-b (l)(b), adopted in 1976, states:

In New York City, 23.1% of foster children enter foster care when under one year of age, and 43% at age three or under. Child Welfare Information Services, supra, n. 9, Table No. 5. Cf. E. Sherman, R. Neuman, & A. Shyne, supra, at 24 (18% of foster-care children in Rhode Island study were under one year of age when they entered foster care, and 43% were under the age of three).

One study of parental contacts in New York City found that 57.4% of all foster children had had no contact with their natural parents for the previous six months. Child Welfare Information Services, Parental Visiting Information, New York City Reports, Table No. 1 (Dec. 31, 1976).

The development of such ties points up an intrinsic ambiguity of foster care that is central to this case. The warmer and more homelike environment of foster care is intended to be its main advantage over institutional child care, yet because in theory foster care is intended to be only temporary, foster parents are urged not be become too attached *837to the children in their care. Mnookin I 613. Indeed, the New York courts have upheld removal from a foster home for the very reason that the foster parents had become too emotionally involved with the child. In re Jewish Child Care Assn. (Sanders), 5 N. Y. 2d 222, 156 N. E. 2d 700 (1959). See also the ease of the Lhotans, named appellees in this case, n. 1, supra. On the other hand, too warm a relation between foster parent and foster child is not the only possible problem in foster care. Qualified foster parents are hard to find, Kadushin 367-372, 415-417, and very little training is provided to equip them to handle the often complicated demands of their role, Rein, Nutt, & Weiss *44-45;* it is'thus sometimes possible that foster homes may provide inadequate care. Indeed, situations in which foster children were mistreated or abused have been reported. Wald 645. And the social work services that are supposed to be delivered to both the natural and foster families are often limited, due to the heavy caseloads of the agencies. Kadushin 413; Mnookin II 274. Given these problems, and given that the very fact of removal from even an inadequate natural family is often traumatic for the child,. Wald 644-645, it is not surprising that one commentator has found “rather persuasive, if still incomplete, evidence that throughout the United States, children in foster care are experiencing high rates of psychiatric disturbance.” Eisenberg, The Sins of the Fathers: Urban Decay and Social Pathology, 32 Am. J. of Orthopsychiatry 5, 14 (1962).

It must be noted, however, that both appellee foster parents and intervening natural parents present incomplete pictures of the foster-care system. Although seeking relief applicable to all removal situations, the foster parents focus on intra-foster-care transfers, portraying a foster-care system in which children neglected by their parents and condemned to a permanent limbo of foster care are arbitrarily shunted about by social workers whenever they become attached to a foster home. The natural parents, who focus on foster children being returned to their parents, portray a system under which poor and minority parents, deprived of their children under hard necessity and bureaucratic pressures, are obstructed in their efforts to maintain relationships with their children and ultimately to regain custody, by hostile agencies and meddling foster parents. As the experiences of the named parties to this suit, nn. 1, 5, supra, and the critical studies of foster care cited, supra, at 833-838, demonstrate, there are elements of truth in both pictures. But neither represents the whole truth about the system.

Appellees have also apparently abandoned their claim that' the challenged procedures violate the Equal Protection Clause of the Fourteenth Amendment.

The dissenting judge argued that the court’s underlying premise was a holding “over the objection of the representative of the children . . . that the foster children have a ‘liberty’ interest in their relationship with the foster parents.” 418 F. Supp., at 288. If this was in fact the reasoning of the District Court, we do not see how it differs from a holding that the foster family relationship is entitled to privacy protection analogous to the natural family — the issue the District Court purported not to reach.

Appellants argue, with the dissenting judge below, id., at 288, that in any event appellee foster parents have no standing to rely upon a supposed right of the foster children to avoid “grievous loss,” because the foster children are independently represented by court-appointed counsel, who has consistently opposed the relief requested by appellees, and denied that the children have any such right. This argument misunderstands the peculiar circumstances of this lawsuit. Ordinarily, it is true, a party would not have standing to assert the rights of another, himself a party in the litigation; the third party himself can decide how best to protect his interests. But children usually lack the capacity to make that sort of decision, and thus their interest is ordinarily represented in litigation by parents or guardians. In this case, however, the State, the natural parents, and the foster parents, all of whom share some portion of the responsibility for guardianship of the child, see supra, at 826-828, and nn. 16-18, are parties, and all contend that the position they advocate is most in accord with the rights and interests of the children. In this situation, the District Court properly appointed independent counsel to represent the children, so that the court could have the benefit of an independent advocate for the welfare of the children, unprejudiced by the possibly conflicting interests and desires of the other parties. It does not follow, however, that that independent counsel, who is not a guardian ad litem of the children, is solely authorized to determine the children’s best interest. No party denies, or could deny, that there is an Art. Ill “case or controversy” between the foster parents and the defendant state officials concerning the validity of the removal procedures. Accordingly, their standing to raise the rights of the children in their attack on those procedures is a prudential question. Craig v. Boren, 429 U. S. 190, 193 (1976). We believe it would be most imprudent to leave entirely to court-appointed counsel the choices that neither the named foster children *842nor the class they represent are capable of mailing for themselves, especially in litigation in which all parties have sufficient attributes of guardianship that their views on the rights of the children should at least be heard.

There can be, of course, no doubt of appellees’ standing to assert this interest, which, to whatever extent it exists, belongs to the foster parents as much as to the foster children.

Moore v. East Cleveland, ante, p. 494 (plurality opinion); Roe v. Wade, 410 U. S. 113, 152-153 (1973); Wisconsin v. Yoder, 406 U. S. 205, 231-233 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965); id., at 495-496 (Goldberg, J., concurring); id., at 502-503 (White, J., concurring in judgment); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 399-401 (1923).

See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972); Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974); Armstrong v. Manzo, 380 U. S. 545 (1965); May v. Anderson, 345 U. S. 528 (1953).

Of course, recognition of a liberty interest in foster families for purposes of the procedural protections of the Due Process Clause would not necessarily require that foster families be treated as fully equivalent to *843biological families for purposes of substantive due process review. Cf. Moore v. East Cleveland, ante, at 546-547 (White, J., dissenting).

The scope of these rights extends beyond natural parents. The “parent” in Prince itself, for example, was the child's aunt and legal custodian. 321 U. S., at 159. And see Moore v. East Cleveland, ante, at 504-506 (plurality opinion), 507-511 (Brennan, J., concurring).

Some Justices of the Court have suggested that, at least where the substantive protection of the Due Process Clause is involved, biological *844relationship alone is not sufficient to create a constitutionally protected “family.” Moore v. East Cleveland, ante, at 536-540 (Stewart, J., dissenting) 549 (White, J., dissenting).

Adoption, for example, is recognized as the legal equivalent of biological parenthood. See, e. g., N. Y. Dom. Rel. Law § 110, supra, n. 19.

The briefs dispute at some length the validity of the “psychological parent” theory propounded in J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child (1973). That book, on which appellee foster parents relied to some extent in the District Court, is indeed controversial. See, e. g., Strauss & Strauss, Book Review, 74 Colum. L. Rev. 996 (1974); Kadushin, Beyond the Best Interests of the Child: An Essay *845Review, 48 Soc. Serv. Rev. 508, 512 (1974). But this case turns, not on the disputed validity of any particular psychological theory, but on the legal consequences of the undisputed fact that the emotional ties between foster parent and foster child are in many eases quite close, and undoubtedly in some as close as those existing in biological families.

The legal status of families has never been regarded as controlling:

The New York Court of Appeals has as a matter of state law “[p]articularly rejected . . . the notion . . . that third-party custodians may acquire some sort of squatter’s rights in another’s child.” Bennett v. Jeffreys, 40 N. Y. 2d 543, 552 n. 2, 356 N. E. 2d 277, 285 n. 2 (1976).

The judgment of the District Court contains a provision (see Jurisdictional Statements, Joint App. 36a, 37a), not suggested in the opinion, that “hearings need not be held when the foster child is to be removed . . . at the request of the foster parent.” At oral argument, counsel for the foster parents stated that this limitation was the result of “a practical *848consideration .... [I]f a foster parent feels that the child cannot stay with the foster parent any longer, it doesn't make sense to try and impose that. . . . [I]t's hard to contemplate a situation in which it would be in the best interest of a child to stay with people that had asked that the child be taken.” Tr. of Oral Arg. 49. As many as one-third of transfers between foster homes may be at the request of the foster parents. N. 15, supra.

“As of July 1, 1974, New York City has provided, at the foster parent’s request, as a substitute for or supplement to the agency conference, a pre-removal ‘independent review’ conducted ‘in accordance with the concepts of due process.’ Its salient features, as set forth in an internal memorandum of August 5, 1974, are as follows: (1) the review is heard before a supervisory official who has had no previous involvement with the decision to remove the child; (2) both the foster parents and the agency may be represented by counsel and each may present witnesses and evidence; (3) all witnesses must be sworn, unless stipulated otherwise, and all testimony is subject to cross-examination; (4) counsel for the foster parents must be allowed to examine any portion of the agency’s files used to support the proposal to remove the child; (5) either a tape recording or stenographic record of the hearing must be kept and made available to the parties at cost; and (6) a written decision, supported by reasons, must be rendered within five days and must include a reminder to the foster parents that they may still request a post-removal hearing under N. Y. C. R. R. §450.14.” 418 F. Supp., at 285.

The District Court itself apparently relied on similar logic, in exempting in its judgment removals requested by foster parents from the mandatory hearing requirement. See n. 55, supra. In terms of the emotional cohesion of the family, the difference between a foster parent who requests removal of the foster child, and one who merely consents to removal seems irrelevant.

In assessing the likelihood of erroneous decisions by the agency in the absence of elaborate hearing procedures, the fact that the agency bears primary responsibility for the welfare of the child, and maintains, *851through its caseworkers, constant contact with the foster family is relevant. The foster parent always has the opportunity to present information to the agency at this stage. We, of course, do not suggest that such informal “process” can ever do service for the fundamental requirements of due process. Cf. In re Gault, 387 U. S. 1 (1967). But it should not routinely be assumed that any decision made without the forms of adversary fact-finding familiar to the legal profession is necessarily arbitrary or incorrect.

Appointment of such representatives in each of the numerous cases in which the foster child is very young would, of course, represent a major administrative burden on the State. This burden would be balanced by little gain in accuracy of decisionmaking, since the appointed representative’s inquiry into the best interests of the child would essentially duplicate that already conducted by the agency and that to be conducted at the hearing by the administrative decisionmaker. Moreover, the State’s interest in avoiding “fiscal and administrative burdens,” Mathews v. Eldridge, 424 U. S. 319, 335 (1976), is not the only interest that must be weighed against requiring still more elaborate hearing procedures. As the District Court acknowledged, where delicate judgments concerning “the often ambiguous indices of a child’s emotional attachments and psychological development” are involved, we must also consider the possibility that making the decisionmaking process increasingly adversary “might well impede the effort to elicit the sensitive and personal information required,” 418 F. Supp., at 286, or make the struggle for *853custody, already often difficult for the child, see, e. g., Kadushin 404, even more traumatic. In such a situation, there is a value in less formalized hearing procedures. See also n. 57, supra.

Since the class certified by the District Court embraces all foster parents who have had a foster child living with them for over one year, while § 392 is limited in application to children in foster care for 18 months, each class includes some children not included in the other. For example, a child who had been in foster care for 13 months, all of it with the same family, is a member of the certified class but not eligible for § 392 review. On the other hand, a child who has been in foster care for two years but not with the same family, is eligible for § 392 review but is not a member of the certified class.

In this Court, as in the District Court, the primary reliance of the defendants and intervenors has been on the adequacy of § 392 as a procedure for protecting the interests of the foster family, without as fully addressing the adequacy otherwise of the procedures provided by 18 N. Y. C. R. R. § 450.10 and Soc. Serv. Law § 400. Our consequent emphasis upon the adequacy of § 392 procedures as requiring reversal of the District Court is not to be understood to imply any view upon the adequacy of the alternative administrative remedies to protect those interests.

The Court’s opinion seems to indicate that there is no reason to distinguish between the claims of the foster parents and the foster children, either because the parents have standing to assert the rights of the children or because the parents’ interest is identical to that of the children. See ante, at 841-842, nn. 44, 45. I cannot agree. First, it is by no means obvious that foster parents and foster children have the same interest in a continuation of their relationship. When the child leaves the foster family, it is because the agency with custody of him has determined that his interests will be better served by a new home, either with his natural parents, adoptive parents, or a different foster family. Any assessment of the child’s alleged deprivation must take into account not only what he has lost, but what he has received in return. Foster parents, on the other hand, do not automatically receive a new chjld with whom they will presumably have a more profitable relationship. Second, unlike the situation in Craig v. Boren, 429 U. S. 190, 195-196, this is not a case where the failure to grant the parents their requested relief will inevitably tend to “[dilute] or adversely [affect]” the alleged constitutional rights of the children. Denying the parents a hearing simply has no effect whatever on the children’s separate claim to a hearing, and does not impair their alleged constitutional rights. There is therefore no standing in the parents to assert the children’s claims. See Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423, 432 (1974), cited in Craig, supra, at 195. I would nevertheless consider both the parents’ and the children’s claims in these eases, but only because the suit was originally brought on *858behalf of both the parents and the children, all of whom were parties plaintiff. While it is true that their interests may conflict, there was no reason not to allow counsel for the parents to continue to represent the children to the extent that their interests may be compatible. The conflict was avoided by the District Court’s appointment of independent counsel, who took a position opposite to that of the foster parents as to where the children’s welfare lay. The appointment of independent co'unsel, however, should not have left the children without advocacy for the position, right or wrong, that they are entitled to due process hearings. That position should have been left to be asserted by the counsel who originally brought the suit for the children. My view, therefore, is that the parents and the children are properly before the Court and entitled to assert their own separate claims, but that neither group has standing to assert the claims of the other.

“That the Sanders have given Laura a good home and have shown her great love does not stamp as an abuse of discretion the Trial Justice’s determination to take her from them. Indeed, it is the extreme of love, affection and possessiveness manifested by the Sanders, together with the conduct which their emotional involvement impelled, that supplies the foundation of reasonableness and correctness for his determination. The vital fact is that Mr. and Mrs. Sanders are not, and presumably will never be, Laura’s parents by adoption. Their disregard of that fact and their seizure of full parental status in the eyes of the child might well be, or so the Trial Justice was entitled to find, a source of detriment to the child in the circumstances presented.” 5 N. Y. 2d., at 229, 156 N. E. 2d, at 703.

The consequences of extending constitutional protection to the foster family relationship are, as the Court points out, ante, at 846-847, especially absurd when the child would otherwise be immediately returned to his natural parents. If the foster family relationship were to occupy the same constitutional plane as that of the natural family, the conflict between the constitutional rights of natural and foster parents would be totally irreconcilable.

Together with No. 76-183, Shapiro, Executive Director, New York State Board of Social Welfare, et al. v. Organization of Foster Families for Equality & Reform et al.; No. 76-5193, Rodriguez et al. v. Organization of Foster Families for Equality & Reform et al.; and No. 76-5200, Gandy et al. v. Organization of Foster Families for Equality & Reform et al., also on appeal from the same court.

Paul Piersma filed a brief for the National Juvenile Law Center as amicus curiae urging reversal. Joseph Goldstein, Sonja Goldstein, Robert A. Burt, Paul D. Gewirtz, and Stephen Wizner filed a brief for A Group of Concerned Persons for Children as amici curiae urging affirmance. Briefs of amici curiae were filed by William B. Haley for the Community Service Society of New York; by Michael J. Dale, Gene B. Mechanic, and Carol Sherman for the Legal Aid Society of New York City, Juvenile Rights Division; and by Herbert Teitelbaum for the Puerto Rican Family Institute, Inc., et al.