With the Best of Intentions: The Constitutionality of the Statutory Scheme for Voluntary Child-Care Agencies in New York

Introduction

Traditionally, the State of New York has recognized an obligation to provide for children who have been abandoned, who have been turned over to the authorities by parents who are unwilling or unable to care for them, or who have been adjudged by the New York Family Court to be in need of supervision for a variety of reasons, ranging from juvenile delinquency to parental abuse or neglect. The state’s obligation to these children has been codified in the laws.

Although motivated by the best of intentions, the State’s method of fulfilling this obligation has been widely criticized. Rather than undertaking the care of these children directly, the State has chosen to engage voluntary agencies by contract to provide services for children in need of care. Owing to historical influences the voluntary agencies are for the most part sectarian. A child who is adjudged by the Family Court to be in need of care is referred to one of three central referral units, which are operated by the Roman Catholic, Jewish and Protestant faiths and which serve as clearing houses for their agencies. Automatic preference is given to a child of an agency’s religion and a child will be referred to an agency not of his or her religion only if there are no children of that agency’s religion who need the space. Placement according to religion is required by law. The New York State Constitution as well as the regulatory statutes pertaining to the voluntary agencies mandate that placement of a child must, when practicable, be made with an institution affiliated with the child’s religion. In practice this generally means that if there is no agency of the child’s religion willing or able to accept him or her, the child may spend months or years waiting for care. An indication of the force of this “when practicable” restriction is found in an additional statute requiring that placement of a child in an agency of a dissimilar religious affiliation be explained in a statement of reasons which must be filed with the State. The children whose placement is delayed wait in inadequate shelters or homes. Not infrequently, they find their way back to the streets.

Currently the children whose placement is being delayed are overwhelmingly Protestant and black. Because religious sects practiced the same racial segregation as the rest of the nation, blacks are concentrated in six predominantly black Protestant denominations. This factor and the still relatively weak economic position of blacks results, especially in New York City, in a population of children in need of care who are disproportionally Protestant in relation to the agency spaces available.  After black Protestant children are referred to voluntary child-care agencies and are rejected by the Roman Catholic and Jewish agencies on the basis of their religion, they must compete for the inadequate number of spaces in Protestant agencies. The losers are sent to state training schools or temporary shelters where they often become permanent residents. The system which began as an attempt to get children off the streets now often sends them to places little better than the streets. For a child who is schizophrenic, mentally retarded, suicidal or addicted the shelters and training schools offer little if any treatment. They are little better than holding centers with minimal facilities. As the former Administrator of the Family Court, Judge Justine Polier has said, “the system fails to reach out and serve the people it was created to serve.”

The failure referred to by Judge Polier has its roots in the history of the NewYork child-care system. The voluntary child-care agency system began in the reform movement of the early 1800’s.2 At that time many reformers became interested in the idea of special institutions for dependent, delinquent and neglected children. As a result, the first juvenile reformatory in the United States, the House of Refuge for the Juvenile Delinquents in the City of New York, was founded in 1824. Financial aid from the state followed, and soon similar institutions were opened in many other localities throughout the state. By 1866 there were sixty such institutions receiving financial support from both the state and local governments. The use of state funds led to the establishment of a central supervisory body in 1867 to oversee the use of public monies and to set standards.

Meanwhile, in 1853, the New York Juvenile Asylum was founded to receive children between the ages of five and fourteen; in that same year Charles Loring Brace organized the Children’s Aid Society, which placed children with Protestant families on farms rather than in institutions. The success of the Children’s Aid Society and other similar Protestant groups led Roman Catholics, fearful of having Catholic children placed in Protestant homes, to form their own societies. The Catholics and eventually the Jews grew dependent on the institution rather than farm families as an answer to the problem of placement for their dependent and neglected children. Gradually the reliance of the Protestant groups on “farming out” as a solution ended. They too established institutions.

What survived from this early period was a strongly sectarian child-care system, sectarian both in terms of the institutions themselves and the statutory scheme which was evolved to fund and regulate them.  This combination has resulted in a situation where the predominant religion of children in need of care is not the religion of a proportionate number of the spaces available in the voluntary agencies. Yet the children must be considered for places in the agencies on the basis of their religion because of state mandate.

Recently these inequities have resulted in legal action. Wilder v. Sugaran is asuit challenging the current New York child-care system. It is a class action on behalfof all children in New York City who are in need of care outside their homes and whoare black and predominantly of the Protestant faiths. Complainants charged the New York statutory scheme for voluntary child-care agencies with violations of the establishment and free exercise clauses of the first amendment, the cruel and unusual punishment clause of the eighth amendment  and the due process and equal protection clauses of the fourteenth amendment. The suit has provoked both criticism of and support for the present system. That there are inequities in this and indeed in any system is not the issue. Rather the issue which Wilder v. Sugarman has delineated is whether the inequities violate the constitutional rights of the children in need of care who are supposedly being helped by the system. This Note will consider the question of the constitutionality under the fast and fourteenth amendments of New York’s statutory scheme for voluntary child-care agencies. Another question is necessarily involved: whether the system is “dysfunctional and ought to be replaced.”

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