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Relatives' rights to care for children: if parents can no longer care for their child and a relative wants to step in, should he or she become a foster parent or seek legal custody? The relative must consider each option carefully and understand that neither goal is easy to achieve.

When a child is removed from his or her home because of abuse or neglect, relatives may opt to take care of the child. But what is the best way to do that? For example, if a grandmother comes to you when child welfare authorities take her grandson away from her daughter and son-in-law, and she wants to take care of him, what should you tell her? Should she try to become the child's foster mother, or should she seek legal custody? She must weigh her options carefully--and you must advise her of the advantages and disadvantages of both choices.

All states must have procedures to protect children from parents who abuse or neglect them. (1) One way of protecting children is to remove them from the parents who abuse them and place them in a safer environment. When state officials remove a child from a home, the child may be placed in foster care, in which case the state retains legal custody, or the state may relinquish custody of the child to another person, usually a relative of the child. (2) When a state takes custody, the parent loses custodial rights but retains the legal guardianship of the child. (3)

Because parents have due process rights, a state that removes a child from his or her parents must provide the parents with either a predeprivation hearing or a prompt postdeprivation heating before a neutral magistrate. (4) However, if both the state and the parents agree that the child should reside with a relative, due process is satisfied by the parents' waiver of their right to a hearing, and the government will not be further involved with the child.

Our country has a long tradition of extended families raising children, and this tradition is expanding. From 1990 to 2000, the number of American families headed by grandparents increased 30 percent; by 2003, 6 million children lived in households headed by grandparents or other relatives. (5)

In the United States, the family is not only a revered entity but also a constitutionally protected one. The Supreme Court has repeatedly ruled that one aspect of the right to liberty, guaranteed by the Fifth and Fourteenth amendments, is the right to raise one's children, and to be raised by one's parents, without government interference, as long as the parents are fit to care for the children, and that the government cannot deprive people of those rights without due process of law. (6)

All families consisting of blood relatives are entitled to claim those substantive and procedural fights, not only families consisting of parents who raise their own minor children. As the U.S. Supreme Court declared almost 30 years ago in Moore v. City of East Cleveland, "Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition." (7) Thus, the government will not interfere with informal living arrangements unless the relative caretaker is unfit.

The situation changes when the relationship between relative and child becomes formalized by a court order or a voluntary placement in foster care. (8) Government regulation goes hand in hand with government recognition.

The most extensive form of government involvement with families is through the foster care system. Children in foster care have placed in government custody by court order in some sort of judicial proceeding. Those proceedings, and the foster care system, are highly regulated by both federal and state law.

Historically, foster children were placed in government custody far away from their families. The philosophy behind this approach was that the children, having been removed from families in which they had been neglected or abused, should have a completely fresh start--away from their abusive parents and away from the allegedly suboptimal neighborhoods that they came from.

That approach actively discouraged relatives from stepping forward to care for foster children. Indeed, many states refused to provide relative, or "kinship," foster parents the monthly foster care stipend that unrelated foster parents received. In 1979, the Supreme Court ruled that this practice was unconstitutional and required states to provide stipends to all foster parents, regardless of their relationship to the children in their care. (9) That decision rectified the long-standing imbalance between kinship and stranger caregivers and permitted relatives to care for their grandchildren, nieces, nephews, and younger siblings where they otherwise might have been unable to do so for financial reasons--and paved the way for relatives to serve as foster parents for children.

As time passed, the states and even the federal government revised their thinking. Now the federal government and most states explicitly give relatives a preference as potential foster parents for children in government custody. (10) As a result, in New York City, for example, roughly 30 percent of the children in non-institutional foster care live with foster parents who are related to them. (11) In other states where there is no legislative preference, relatives are nonetheless encouraged to care for children as foster parents.

Pros and cons

Some states give relatives the option of seeking legal custody of the children in lieu of becoming licensed foster parents. (12) (Other states afford the foster care agencies the discretion to determine whether a child will reside with a relative or remain in foster care. (13)) The choice that the relatives make in such a situation will have significant legal consequences for them and for the children. They are well advised to choose carefully.

To a relative, the primary advantage of becoming a foster parent for a child is financial. All foster children are entitled to health insurance, either Medicaid or some other form of free health care. In addition, most children in foster care are entitled to a monthly stipend of at least several hundred dollars. The money can be used not only for food, clothing, and other items for the child, but also to defray costs such as housing and transportation for the entire family.

In addition to financial assistance, other services are available to foster children and their caregivers, including child care, housekeepers, counseling and therapy, transportation, and even emergency cash. Moreover, each child in foster care has a caseworker who may provide valuable assistance and take on assignments that the caretaker would otherwise have had to undertake, such as securing medical treatment for the child. The caseworker, as a government employee, may have the ability to cut through bureaucratic red tape.

As is the case with all foster children, the government has legal custody of the children, while the foster parent has only physical custody. These benefits and other entitlements exist by virtue of the legal custodial relationship between foster children and the government. Absent that relationship, the relative caregivers are responsible for satisfying all the children's needs.

The benefits that kinship foster parents enjoy are balanced by the serious drawback of not having legal custody of the children. Because legal custody rests with the government, the government has the prerogative of deciding where the children will live, which in turn means that the government has the power to remove children from foster parents for almost any reason, or no reason at all, and without affording aggrieved foster parents an opportunity to challenge removal decisions in court. (14)

Having legal custody also means that the government, not the foster parent, has the tight to make decisions about the children's day-to-day life, including selecting the children's physician and even making decisions about haircuts. (15) Moreover, while many states now consider relative caretakers as preferable to strangers, the states do not recognize kinship foster parents as having any more rights than unrelated foster parents to continue caring for the children.

Case law

Foster parents have repeatedly gone to court, arguing that they should have rights to continue caring for their foster children and the procedural protections that accompany those rights. In 1977, the Supreme Court addressed the issue, holding that foster parents have extremely limited rights to challenge removals of foster children from their homes. The Court upheld as constitutional a New York statute that afforded aggrieved foster parents only a conference with representatives of the same child welfare agency that executed the removal, followed by a relatively informal postremoval administrative heating conducted by an official of the state child welfare agency. (16)

Five years later, in Rivera v. Marcus, the Second Circuit recognized that the Constitution makes a distinction between related and unrelated foster parents when the state removes children from related foster parents and places the children with strangers. The court held that Connecticut's procedures for contesting foster care removals (which were nearly identical to New York's) were constitutionally insufficient for foster parents who were close blood relatives of the foster children. (17)

The Second Circuit held that kinship foster parents and children, like other extended family members living together, have an "important liberty interest" in maintaining such familial relationships, which is entitled to procedural due process protection under the Fourteenth Amendment and which is not waived when kinship foster parents sign foster care agreements with the government. The court thus recognized that certain relatives who care for foster children have the same constitutionally protected liberty interest in their children as relatives who care for children in informal arrangements--an interest that is subordinate only to that of the parents, but greater than any other interest, including that of the government.

In Rivera, the biological mother was not attempting to regain custody of her children. Because of mental health problems that left her unable to care for her children, the mother had asked the children's adult half-sister (the plaintiff, Rivera), with whom she and the children had been living for several years, to care for them.

Ultimately, the mother's deteriorating mental condition caused her to be institutionalized, at which point the children were placed in the custody of the state of Connecticut. The Connecticut Welfare Department then entered into a foster agreement with Rivera, under which the state had the right to remove the children from her kinship foster home at any time.

Eleven months after executing the foster care agreement, the department removed the children from Rivera's home. She contested the removal at an administrative case review (ACR)--her only remedy under Connecticut law. The ACR was a highly informal proceeding: Rivera was unable to bring an attorney or cross-examine any of the witnesses against her. The ACR was presided over by a three-member panel including two employees of the Connecticut Welfare Department and an employee of a private casework agency that contracted with the welfare department. Not surprisingly, the ACR panel upheld the removal decision. (18)

Rivera commenced a federal civil rights lawsuit under 42 U.S.C. [section]1983, alleging that Connecticut's administrative procedures for reviewing the removal of her half-siblings/foster children from her home violated her procedural due process rights under the Fourteenth Amendment. Employing the Supreme Court's procedural due process analysis, the court concluded that the amount of process due to kinship foster parents was "substantial" and that due process required, among other things, timely and adequate notice of the reasons for removal; an opportunity to retain counsel; and, except in emergency situations, a preremoval hearing before an impartial decision-maker, including an opportunity to confront and cross-examine witnesses. (19)

However, Rivera has had limited impact. Only two other federal courts outside of the Second Circuit have squarely addressed the issue and both have declined to follow the Second Circuit's lead in recognizing a constitutionally protected liberty interest in the relationships between kinship foster parents and children .20 The courts in these latter cases noted the absence in many--if not most--kinship foster care arrangements of two factual predicates to the constitutional recognition of the extended familial relationships at issue in Rivera and Moore: a custodial relationship that exists before and/or independent of the foster care system, and no conflict between the interests of the relative caretakers and the biological parents. (21)

Even within the Second Circuit, child welfare officials in New York continue to remove children from the foster homes of relatives for reasons other than abuse, neglect, or unfitness, while affording the aggrieved kinship foster parents only the administrative remedies that the court found unconstitutional in Rivera. (22) As a result, kinship foster parents have had their grandchildren, nieces, and nephews removed from their foster homes for such "offenses" as parking bicycles in their living rooms, having too many candles or too much clutter in their homes, or merely suffering from the normal physical infirmities of increased age--none of which would be sufficient reasons to remove children from their own parents. The child welfare agencies that remove the children often fail to notify the kinship foster parents of the reasons for the removal or of their tight to contest the removals.

Administrative remedies

The current administrative framework does not provide a kinship foster parent any meaningful opportunity for relief. Generally, the initial proceeding (before the child is removed, except in alleged emergency situations) is not even a hearing but a "conference" between the relative and employees of the agency that removed the child. No sworn testimony is taken, and the decision as to the propriety of the removal is made by an employee of the same agency that removed the child.

If the kinship foster parents are unsuccessful at the initial conference stage--and they almost always are--they can seek an administrative hearing before the state agency that oversees foster care. However, that heating, which ordinarily does not take place until months after removal, permits hearsay evidence, which bars subjecting the evidence to the time-tested cross-examination process.

Moreover, the state official who presides at the hearing is not a neutral decision-maker, but rather an employee of the state child welfare agency. The local agency must prove the propriety of the removal only by substantial evidence, less than a preponderance. Thus, the foster parent may lose at the hearing, even if a preponderance of the evidence is in his or her favor.

Kinship foster parents and their attorneys participating in such hearings should

* understand that while the burden of proof is technically on the foster care agency that executed the removal, in reality, the kinship foster parent must provide strong evidence of his or her exceptional care of the subject child in order to prevail

* use the state's subpoena power in these hearings to bring in agency caseworkers and records that will provide exculpatory evidence and prove the kinship foster parent's claim that he or she provided outstanding care to the child relative

* bring his or her own witnesses for the same purpose.

Even if the kinship foster parent is successful on the merits and convinces the state that the removal was improper, the state does not order the child returned but merely directs the local agency (which improperly removed the child in the first place) to determine whether it would now be appropriate to return the child. Thus, in reality, the state administrative hearing provides no remedy at all.

Kinship foster parents' rights

In response to New York's defiance of Second Circuit law, several kinship foster parents have filed civil rights lawsuits in federal court, challenging the policies, practices, and procedures of New York City's child welfare agency governing the removal of foster children from kinship foster parents, for reasons other than reunifying the children with their own parents. Those suits seek

* a declaration that New York City's current system for removing children from foster homes is unconstitutional as applied to kinship foster families

* a declaration that New York State's regulations governing the administrative review of foster care removals are unconstitutional as applied to kinship foster families

* damages to compensate for the violations of the substantive and procedural rights of the relatives and children

* injunctions directing that the children be returned to the kinship foster parents' care and enjoining child welfare authorities and their agents from continuing the unconstitutional manner in which they remove children from kinship foster homes. (23)

One of the lawsuits was filed as a class action on behalf of all relatives caring for foster children in New York City. The plaintiffs' motion for class certification is pending before the district court. (24)

So far, the results of these lawsuits have been mixed. On the one hand, the district court in Jones v. Mattingly and Haynes v. Mattingly has recognized that kinship foster parents and children have a liberty interest in their extended familial relationships that is entitled to procedural due process protection. It even entered a preliminary injunction in Jones ordering the immediate return of two grandchildren to the grandmother foster parent. (25)

However, the court has stopped short of recognizing that kinship foster parents and children have a substantive due process right to live together that, when balanced against the interests of the state in removing the children, is equal to that of parents and children. Nor has the court found that kinship foster parents' rights may not be disturbed in the absence of their abuse, neglect, or unfitness as caretakers.

Instead, the court has thus far chosen to apply the "best interests of the child" standard, traditionally used to resolve custody disputes in state court, and has denied requests for orders directing that children in Balbuena v. Mattingly and Haynes v. Mattingly be returned as a remedy for procedural due process violations. (26) The court has reasoned that a "best interests" inquiry is not the province of a federal court charged with remedying constitutional violations but must instead be undertaken by a state court.

Annual "permanency" hearings in family or juvenile court (27) evaluate foster children's homes--but if children have been removed from their kinship foster parents, those now-former foster parents lack standing to participate in the hearing. (28) Even for long-term foster parents entitled to notice of the hearing, the family court is under no statutory duty to consider the kinship relationship that Rivera protects.

As these federal lawsuits demonstrate, one of the major obstacles facing the kinship foster parent and child plaintiffs is the limited nature of the Rivera decision. The Second Circuit expressly addressed only the procedural due process rights of kinship foster parents, noting in a footnote that "there is less than uniform consensus" with respect to whether extended family is entitled to far-reaching substantive due process protection. (29) Moreover, because Rivera, the relative foster mother, sought only declaratory relief, the court did not consider whether return of the foster children to their relative was a proper remedy for the unconstitutional removal. In some ways, what the plaintiffs in the three New York lawsuits are asking the district court to do is unprecedented.

Nevertheless, there is ample legal support for federal courts to adopt such a broad view of kinship foster families' constitutional rights and the proper remedies for violations of such rights. After all, the Supreme Court and lower courts have expressly found that extended family members have a fundamental liberty interest in maintaining their relationships with one another, protected from government interference by substantive and procedural due process provisions. (30)

Moreover, the circuits that have ruled on the issue are split on the question of whether the fundamental substantive due process rights of extended family members to live together exists when they are living together in kinship foster care. Some federal courts have been willing to rule on the issue of which foster home a child should reside in, when doing so is necessary to remedy a federal constitutional violation. (31)

Seeking legal custody

Caring for children as kinship foster parents may subject relative caretakers to unwanted and arbitrary government interference into their extended familial relationships. Therefore, many relatives may decide to care for child family members as legal custodians. For these relatives, the financial and social benefits of the foster care system are far outweighed by the autonomy that legal custody provides.

However, seeking legal custody of children who are already in government custody is not without its challenges. One problem that relatives face when they seek custody of children is that the government, which already has custody of the children, may be disinclined to relinquish it to third parties, even if they are loving grandparents, aunts, or uncles. When governments take children into custody as foster children, they incur legal obligations to provide services to the parents to facilitate reunification of the children with the parents. (32) Their obligation does not extend to releasing the children from foster care to other custodians, even if the custodians are blood relatives.

The situation may be further complicated by antipathy between the parent and the relatives who are seeking custody. Also, the agency caseworkers may simply prefer the current foster parent, who may have cared for many other foster children in the past, over the relative, with whom they are unfamiliar.

Relatives often encounter significant resistance from the family or juvenile courts that hear their custody applications. For example, these courts often take the view that they cannot even hear custody petitions concerning children who are already involved in ongoing child neglect proceedings. (33) Moreover, the constitutional protections afforded to existing families headed by relatives do not apply to relatives who are seeking to retrieve child family members from foster care.

In fact, the relatives will frequently find that they are at a distinct disadvantage. The foster care agency with custody of the children, as a branch of the government, enjoys a presumption of legitimacy and expertise in the courtroom. The judges may also consider grandparents to be too old or frail to care for children, or they may be reluctant to move a child out of a foster home where the child is said to be thriving. (34)

Since the standard for making custody decisions is the "best interests of the child," and there is no legal presumption in favor of the relatives over the government-selected foster parent, the relative who wants to care for a child who is living with unrelated foster parents will find that he or she has a difficult task ahead.

So, what should a grandmother do when the government child welfare authorities take her grandson away from her daughter and son-in-law because they have abused or neglected the child? Assuming that she wants to care for the child and the government agrees that the child should live with her, she must weigh her options carefully. Assuming that both options exist in her state, should she seek to become the foster mother for the child, or should she seek custody? The lawyer whom she consults must carefully counsel her as to the advantages and disadvantages of both foster care and legal custody.

Notes

(1.) 42 U.S.C. [subsection]5106a(b) (2) (A) (vi) (2000).

(2.) "Foster care means 24-hour substitute care for children placed away from their parents or guardians and for whom the state agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the state or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is federal matching of any payments that are made." 45 C.F.R. [section] 1355.20(a) (2005).

(3.) "The term 'legal guardianship' means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decisionmaking." 42 U.S.C. [subsection]675(7) (2005).

(4.) Suboh v. Dist. Attorney's Office of the Suffolk Dist., 298 F.3d 81, 91 (1st Cir. 2002); Tenenbaum v. Williams, 193 F.3d 581,594 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000); Berman v. Young, 291 F.3d 976, 985 (7th Cir. 2002); Wallis v. Spencer, 202 F.3d 1126,1136 (9th Cir. 2000); Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1245 (10th Cir. 2003).

(5.) AARP, Grandparenting: State Fact Sheets for Grandparents and Other Relatives Raising Children, www.aarp.org/research/family/grandparenting/ aresearch-import-488.html (updated July 2006); AARP, New York: A State Fact Sheet for Grandparents and Other Relatives Raising Children, http:// assets.aarp.org/rgcenter/general/kinship_care_ 2005_ny.pdf (Sept. 2005).

(6.) Santosky v. Kramer, 455 U.S. 745 (1982) (right of children to live with their parents); Stanley v. Illinois, 405 U.S. 645 (1972) (right of parents to raise children); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) ("We have little doubt that the Due Process Clause would be offended '[i]f a state were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest'") (citation omitted).

(7.) Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977); see also Prince v. Massachusetts, 321 U.S. 158 (1944) (aunt caring for niece).

(8.) 42 U.S.C. [section]672(a) (1), (d) (2005).

(9.) Miller v. Youakim, 440 U.S. 125,145 (1979).

(10.) 42 U.S.C. [subsection]671 (a) (19) (2006).

(11.) See New York City Administration for Children's Services, ACS Update June 2005, FY 2005, www.nyc.gov/html/acs/downloads/pdf/stats_ annual_fy05.pdf (last accessed Nov. 6, 2006).

(12.) See e.g.N.Y.FamilyCourtAct [subsection]1017,1028a, 1035(f) (McKinney's 2006); Cal. Welf. & Inst. Code Ann. [section]319(f) (Westlaw current through 2006 Reg. Sess.).

(13.) See e.g. In re Arthur H., 819 N.E.2d 734, 744 (Ill. 2004).

(14.) For example, New York law provides that a foster care agency "may in its discretion remove [a] child from the home where placed," without obtaining judicial approval (N.Y. Soc. Serv. Law [section] 383(2) (McKinney's 2006)). See N.Y. Soc. Serv. Law [section]400 (McKinney's 2006); Matter of James B., 465 N.Y.S.2d 348 (N.Y. App. Div. 1983); In re Hasani B., 600 N.Y.S.2d 694, 698 (N.Y. App. Div. 1993). Moreover, New York's highest court has held that aggrieved foster parents cannot challenge removals of foster children in court but must instead resort to a two-step state administrative review process. People ex rel. Ninesling v. Nassau County Dept. of Soc. Servs., 413 N.Y.S.2d 626, 628-29 (1978). Florida law provides that the courts do not have jurisdiction to order the foster care agency to put a child in the home of a particular family. C.S. v. S.H., 671 So. 2d 260,266-67 (Fla. App. 1996). In Washington, foster parents have no standing to seek judicial review of decisions to remove children from their homes. In re Dependency of J.H., 815 P.2d 1380,1385 (Wash. 1991).

(15.) See e.g. In re Marriage of Watnik, 2002 WL 31045487 at *1 (Cal. App. 2002), cert. denied sub nom. Watnik v. Kniesley, 538 U.S. 999 (2003), (right to custody of a child includes the right to cut the child's hair).

(16.) Smith v. Org. of Foster Families for Equality and Reform, 431 U.S. 816, 845-47 (1977).

(17.) 696 F.2d 1016 (2d Cir. 1982).

(18.) Id. at 1018-19.

(19.) Mathews v. Eldridge, 424 U.S. 319, 335 (1976), set out three factors to weigh when determining how much procedural due process protection the government must provide to an individual before depriving him of a constitutionally protected liberty interest: the nature of the liberty interest at stake, the risk of an erroneous deprivation of such interest through the government procedures currently used, and the burden on the government of providing additional procedural protections.

(20.) See Miller v. California, 355 F.3d 1172,1175 (9th Cir. 2004); Hunt v. Green, 376 F. Supp. 2d 1043, 1056-57 (D.N.M. 2005).

(21.) See Miller, 355 F.3d at 1176 (children were already "wards of the state" when placed in paternal grandparents' home as foster children, and grandparents' interests conflicted with interests of the children's mother); Hunt, 376 F. Supp. 2d at 1056-57 (State of New Mexico, which had legal custody of children pursuant to a court order, placed them in their grandmother's home as foster children).

(22.) See N.Y. Soc. Serv. Law [section]383(2) (McKinney's 2006) (providing that a licensed foster care agency "may in its discretion remove [a foster] child from the home where placed or boarded") (emphasis added); N.Y. Soc. Serv. Law [section]400 (McKinney's 2006); Banks-Nelson v. Bane, 625 N.Y.S.2d 131 (N.Y. App. Div. 1995) (upholding foster care agency's decision to remove child from foster home in absence of abuse or neglect by foster parent where removal was in "best interests" of foster child); Matter of Tahira L., 611 N.Y.S.2d 223, 224 (N.Y. App. Div. 1994) (holding that "sole remedy" of a kinship foster parent upon the removal of a child from her care is to seek a state administrative hearing); 18 N.Y. Comp. Codes, R. & Regs. 443.5 (2005) (providing no cross-examination of witnesses and no impartial decision-maker at initial stage of two-step administrative process governing review of foster care removals) ; 18 N.Y. Comp. Codes, R. & Regs. 358-5.9,358-5.6 (2005) (no guarantee of right to cross-examine witnesses or to an impartial decision-maker at administrative fair hearing on foster care removals).

(23.) See complaints filed in Jones v. Mattingly, No. 04 Civ. 8331 (S.D.N.Y. Oct. 20, 2004); Balbuena v. Mattingly, No. 05 Civ. 2986 (S.D.N.Y. Nov. 29, 2005); Haynes v. Mattingly, No. 06 Civ. 1383 (S.D.N.Y. Mar. 10, 2006).

(24.) See Balbuena, No. 05 Civ. 2986.

(25.) Jones v. Mattingly, No. 04 Civ. 8331 (S.D.N.Y. Oct. 22, 2004) (bench ruling).

(26.) Balbuena v. Mattingly, No. 05 Civ. 2986 (S.D.N.Y. Apr. 7, 2005) (bench ruling); Haynes v. Mattingly, No. 06 Civ. 1383 (S.D.N.Y. Apr. 11, 2006) (bench ruling).

(27.) "[T]he foster parents (if any) of a child and any preadoptive parent or relative providing care for the child are provided with notice of, and an opportunity to be heard in, any review or hearing to be held with respect to the child, except that this subparagraph shall not be construed to require that any foster parent, preadoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and opportunity to be heard." 42 U.S.C. [section]675(5) (G) (2005).

(28.) N.Y. Family Court Act [section] 1089(b) (McKinney's 2006).

(29.) Rivera, 696 F.2d at 1022 n. 10.

(30.) Moore, 431 U.S. 494 at 504 (fundamental substantive due process right to freedom of choice in matters of family life applies equally to extended family members living together); Dollinger v. Milligan, 552 F.2d 1220, 1227 n.6 (7th Cir. 1977) (extending due process protections afforded the nuclear family to the "grandfather-grandchild relationship"); Johnson v. City of Cincinnati, 310 F.3d 484, 501 (6th Cir. 2003) (grandmother had fundamental constitutional right to participate in the upbringing of her grandchildren).

(31.) Haynes v. Mattingly, No. 06 Civ. 1383 (S.D.N.Y. May 23, 2006) (bench ruling); McLaughlin v. Pernsley, 876 F.2d 308, 309, 317 (3d Cir. 1989).

(32.) 42 U.S.C. [section] 671 (a) (15) (2006).

(33.) See e.g. Donna KK. v. Barbara I., 819 N.Y.S.2d 582,583 (N.Y. App. Div. 2006) (courts should not consider relative's application for custody before the underlying child neglect case against the parent is concluded) ; contra Felicity II. v. Lance RR., 811 N.Y.S.2d 465,467 (N.Y. App. Div. 2006) (courts cannot consider relative's application for custody after the underlying child neglect case is concluded).

(34.) See e.g. Matter of Luz Maria V., 803 N.Y.S.2d 544,546-47 (N.Y. App. Div. 2005); Matter of James v. Hickey, 774 N.Y.S.2d 407 (N.Y. App. Div. 2004).

CAROLYN A. KUBITSCHEK is a partner in Lansner & Kubitschek in New York City and an adjunct professor at Cardozo Law School. DARIUS CHARNEY is an associate at the Lansner & Kubitschek law firm.
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