Full opinion text
MEMORANDUM OPINION AND ORDER LOWE, District Judge. This case is about the substantive due process rights of children whose family is the City of New York because their parents either aren’t permitted to continue custody or voluntarily surrender it. The children involved in this lawsuit are repeatedly kept in city offices during the day, don’t know where they will sleep at night and carry their possessions from place to place in plastic garbage bags. The central legal question for this court’s decision is whether the city can constitutionally maintain such a system of overnight foster care “placement” which results in the city’s continued ability to remove children from their homes without having other homes for them. BACKGROUND PROCEDURAL HISTORY Named plaintiffs Ricardo Doe and Richard Roe (pseudonyms) are foster care children who have been placed into the custody of the Commissioner (the “Commissioner”) ' of the New York City Department of Social Services (“DSS”) by the New York Family Court. On May 20,1986, plaintiffs brought suit against three defendants: DSS; George Gross (“Gross”), Commissioner of DSS; and Eric Brettschneider (“Brettschneider”), Assistant Administrator of Special Services for Children (“SSC”), a division of DSS (collectively, the “City”). Gross and Brettschneider are sued in their official and individual capacities. Immediately upon filing their complaint, plaintiffs moved for a preliminary injunction and class certification under Fed.R. Civ.P. Rules 65 and 23(b)(2), respectively (the “First Motion”). Plaintiffs sought to represent: all children who are in the care and custody of the Commissioner because they are alleged or were adjudicated to have been neglected or abused or to be PINS [Persons in Need of Supervision], are alleged to be juvenile delinquents, or were voluntarily placed in foster care, and who have been, are being, or will be held at a field office of SSC without á current placement in a certified, licensed" or approved foster family home or in an authorized agency boarding home, group home or public institution for children either past 7:00 p.m. or on more than one day. (Complaint, II7). In essence, plaintiffs sued on behalf of children who were regularly held in DSS field offices during the day, transported at night to child care facilities or SSC’s office of Emergency Services for Children (“ECS”) to sleep, and returned to the field offices the next morning to await another overnight placement. In their First Motion for injunctive relief, plaintiffs primarily challenged the City’s practice of exposing them to repeated “overnights” as a violation of their due process rights under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Plaintiffs asserted that detention in field offices meant deprivation of proper nutritional, medical and educational supervision, treatment and care. Plaintiffs also contended that the defendants’ alleged failure to provide notice to parents, when their children were held in field offices, constituted a violation of their procedural due process rights. Plaintiffs also claimed various violations of New York State’s Constitution, laws and regulations. Plaintiffs sought an order which would (1) require the defendants to develop additional approved foster care settings; (2) limit the amount of time children would spend in field offices waiting for a place to sleep; (3) ensure access to appropriate education; (4) ensure that children are provided with adequate food, recreation, exercise, clean clothing, and supervision; (5) ensure that infants received special care; and (6) require defendants to notify the childrens’ parents, law guardian or attorney if they are being held at a field office. Following plaintiffs’ First Motion, this court held a scheduling conference at which plaintiffs’ request for expedited discovery was granted and a hearing date scheduled. On June 26, 1986, plaintiffs amended their complaint as of right in order to delete one pendent state claim. From July 14 through July 18, 1986, the court conducted a hearing on the issue of plaintiffs’ entitlement to injunctive relief (the “July Hearing”). Appreciating the need for extensive factual inquiry to resolve that issue and in view of the potentially mandatory nature of the requested relief, the court reserved the task of fashioning a remedy until the entitlement question was resolved. Ten witnesses testified at the preliminary injunction hearing, producing a transcript of more than 700 pages. In addition to the testimony of SSC caseworkers, placement or “allocations” workers, and SSC supervisory or training staff, the court heard testimony from six expert medical or psychiatric specialists who were particularly familiar with the needs of children, the foster care system and, what some have called, the “night-to-night” program. In addition to the testimony, the parties submitted numerous affidavits and the complete court and social services records of fourteen children alleged to be typical of those subjected to repeated overnight placement. At the court’s request, plaintiffs also furnished the court with the results of a computer analysis of data obtained during discovery relating to the numbers and characteristics of children who have been frequently placed on an overnight basis. On the eve of this court’s decision on plaintiffs’ entitlement to preliminary relief, the parties entered into a “First Interim Stipulation and Order of Settlement” (the “Interim Settlement Agreement”). The Interim Settlement Agreement was approved by this court on July 30, 1986. With respect to class certification, the parties agreed that the action would proceed as a class action “on behalf of all children in foster care who have had or will have three successive overnight placements or two failed placements within a three-month period.” (Interim Settlement Agreement, ¶ 12). Regarding plaintiffs’ application for preliminary relief, the Interim Settlement Agreement provided a short-term solution to the inadequacies of the “night-to-night” program. It called for the improvement of the facilities and services available in SSC field offices. More specifically, the Interim Settlement Agreement addressed the inadequacy of the food, medical care, toilet facilities, outdoor recreation, and education at the field offices as well as nursery space at the Bronx field office. The Interim Settlement Agreement also established a system whereby class members would be referred to a designated SSC employee for review and recommendation as to how a stable placement could be obtained for the child. The Interim Settlement Agreement further established a procedure and timetable for reaching a second agreement, expected to focus on elimination of the longer-term causes of overnight placements. The parties envisioned a negotiated plan to eliminate the shortage of foster care placements, diagnostic facilities and psychiatric services. The Interim Settlement Agreement stated that if unresolved issues remained regarding such a plan, plaintiffs could “by motion on or before September 15, 1986 submit to the Court questions of defendants’ liability and unresolved issues regarding the plan.” (Interim Settlement Agreement, ¶ 10(c)). The parties were not able to agree on a plan for the development of foster care placements. As a result, on September 15, 1986, plaintiff class filed a renewed motion for preliminary injunction (the “Renewed Motion”). In its Renewed Motion, the plaintiff class challenges defendants’ practices of: (1) “placing” class members in overnight “placements” on three successive occasions or after a failed placement because an appropriate stable or diagnostic placement was not available, (2) failing to ensure that the children have adequate and clean clothing, and (3) failing to ensure that the children have a daily opportunity to bathe. As was the First Motion, the Renewed Motion is based upon alleged violations of the Due Process Clause of the Constitution’s Fourteenth Amendment, 42 U.S.C. § 1983, the New York State Constitution, state statutes and regulations. Plaintiffs seek a detailed mandatory injunction which, among other things, would require defendants to (1) keep, or encourage voluntary agencies to keep, children in temporary but stable placements (i.e. through the payment of premiums) until a permanent stable placement could be found; (2) produce a foster bed development plan that would obviate the need to place children in overnight “placements” more than three successive times or after a failed placement or to use congregate care for children under ten; (3) provide day care to foster parents of young children; (4) provide out-patient diagnostic services and counseling; and (5) create a computerized vacancy control system. Through August 24, 1987, the plaintiff class filed a series of affidavits in support of its Renewed Motion. The affidavits reported on the defendants’ continued overnight placement practices and the children who have been affected by those practices. In addition, plaintiffs’ affidavits have identified several other allegedly objectionable practices which the defendants have adopted in order to avoid housing children on an overnight basis. Those other practices include: (1) placing foster children in unlicensed congregate care facilities; (2) placing foster children under ten years old in congregate care facilities and children under twelve years old in institutions, without individualized determinations concerning the child’s need for care in a congregate or institutional setting; (3) placing young children and adolescents in the same foster care facilities; and (4) overcrowding congregate care facilities (collectively, the “Additional Practices”). Plaintiffs have taken the position that their action, as it was originally filed, encompasses the Additional Practices. They contend that the essence of this case has always been plaintiffs’ claimed entitlement to stable and appropriate placements immediately upon entry into foster care. Plaintiffs argue, therefore, that their original complaint covers any allegedly unconstitutional practice that defendants devise to cope with the insufficiency of such placements. Defendants, however, have consistently maintained that the instant lawsuit is addressed to the legality of the instability of repeated overnight “placements,” not the propriety of otherwise stable placements. That dispute has resulted in extensive motion practice. • On March 25, 1987, plaintiffs filed an “addendum” to their Renewed Motion in which plaintiffs request that the court order the City to open ten additional Agency Operated Boarding Homes (“AOBH”) each month until certain conditions are met. Those conditions include the placement of children (1) no more than three times within two months; (2) in licensed, certified or approved foster boarding homes which (a) are not overcrowded, and (b) do not simultaneously house children under ten years old and adolescents. Plaintiffs would also have the court require that no child under the age of ten be placed in a congregate care facility unless an individualized determination has been made regarding the child’s need for such care. On March 25, the plaintiff class filed a motion under Fed.R.Civ.P. 15(d) for leave to supplement its complaint to incorporate the Additional Practices (the “Motion to Supplement”). The class seeks leave to make a series of allegations that form the basis of a proposed fifth claim for relief from the Additional Practices. (Proposed Supplemental Amended Complaint, ftf 2a, 20a, 23a, 35a, 35b, 36a, 40a, 41a). In its new fifth claim, the class asserts that the Additional Practices violate the Due Process Clause of the Fourteenth Amendment to the Constitution, 42 U.S.C. § 1983, the New York State Constitution and various New York State statutes and regulations. (Proposed Supplemental Amended Complaint, 1157). The class also wishes to enlarge its prayer for relief. It requests a declaratory judgment on its proposed fifth claim. (Proposed Supplemental Amended Complaint, 11 C.la). It additionally seeks a preliminary and permanent injunction requiring defendants to ensure that congregate facilities do not exceed their licensed capacities, are authorized to care for children with the characteristics of the children placed with them, have an adequate number of beds, and do not simultaneously house young children and adolescents. (Proposed Supplemental Amended Complaint, ¶ D.la). The class also asks that a preliminary and permanent injunction be entered requiring defendants to comply with state regulatory standards prior to placing children under ten years old in congregate care and children under twelve in institutions. (Proposed Supplemental Amended Complaint, ¶ D.lb). As a result of the parties’ disagreement over the nature and scope of this action, they were also unable to resolve certain discovery disputes. The defendants refused to produce subpoenaed documents on certain topics and objected to questions directed at a designated witness on those topics. On April 8, 1987, plaintiffs filed a motion to compel discovery pertaining to four main issues: (1) whether congregate care facilities are overcrowded and what effect overcrowding has had on the children; (2) whether the conditions in congregate care facilities are hazardous to children under ten years of age who are placed in those facilities; (3) whether the bed-development plan adopted by defendants is adequate to meet the projected need for foster beds and whether defendants are taking the steps reasonably necessary to implement the plan; and (4) what placement decisions were made concerning certain children outside of the class and whether these decisions were made using professional judgment (the “Motion to Compel”). On July 14, 1987, plaintiffs moved to redefine the certified class. Plaintiffs seek to include “all children who are or will be in foster care with the New York City Commissioner of Social Services and who are not placed appropriately immediately upon entry into foster care because of the lack of an adequate number of appropriate foster care settings.” (Plaintiffs’ Memorandum of Law in Support of Second Motion for Preliminary Injunction and Amended Class Certification (“PI. Br. on Second Motion”), p. 23). At the same time, plaintiffs filed a second motion for a preliminary injunction (the “Second Motion”) on behalf of the proposed redefined class. The Second Motion focussed on the defendants’ “patterns, practices, customs and policies of placing plaintiffs at the East Harlem Reception Center [“East Harlem”], a facility that is not licensed for the foster care of children, that is not approved for congregate care for children under 10 years old, and that is overcrowded and unsafe.” (Plaintiffs’ Notice of Motion for Second Preliminary Injunction and for Amended Class Certification (“PI. Notice on Second Motion”), p. 2). Plaintiffs again alleged that the City had violated the Due Process Clause of the Fourteenth Amendment. They asked the court to order the City to close East Harlem and place the children currently housed there in “appropriate, authorized and licensed” foster care. (PI. Notice on Second Motion, pp. 1-2). After establishing a briefing schedule, this court notified the parties that an evidentiary hearing on the status of and conditions at East Harlem would begin on Monday, August 10, 1987. On Friday, August 7, 1987, the defendants informed plaintiffs and this court that the City had agreed to comply with the State Department of Social Service’s (“SDSS”) order to close East Harlem down. More specifically, the City agreed to stop placing children at the facility and to find new placements for the 22 children who were then staying at East Harlem. Eight non-handicapped children would be moved by August 15, 1987. The remaining 14 handicapped children would be removed to an SDSS licensed facility by August 31, 1987. The court accordingly cancelled the August 10 hearing. Plaintiffs have not, however, entered into a stipulation of settlement on, or withdrawn their Second Motion. The plaintiffs object to the defendants’ failure to commit to locating “proper” placements for the handicapped children or guarantee that East Harlem will never be reopened. Plaintiffs ask the court to hold the Second Motion in abeyance until they can determine whether the City has provided meaningful relief under its agreement with SDSS. If the handicapped children are not placed in “appropriate facilities or boarding homes,” plaintiffs intend to request that the court “recalendar their motion and permit plaintiffs to present evidence that the handicapped children were subjected to unconstitutional conditions at East Harlem and that their replacement has not rectified that situation.” (Plaintiffs’ Statement of Outstanding Issues, p. 14; see also Plaintiffs’ Reply to Defendants’ Statement of Outstanding Issues, p. 4). The Children and the Night-to-Night Program An Overview The children who have been shuffled from place to place on the overnight program fall into four statutory classifications. They are: (1) children who are alleged or adjudicated to be neglected or abused and were remanded to the Commissioner’s custody; (2) children who are alleged or adjudicated to be a Person in Need of Supervision (PINS) and remanded to the Commissioner’s custody; (3) children who are alleged to be juvenile delinquents (JD) and are remanded to the Commissioner pending trial; and (4) children who have been voluntarily placed in the Commissioner’s custody by their parents or guardians. The treatment of these children, whether they be abused, neglected, PINS, JDs or voluntarily placed, is the result of the policies and practices developed by SSC over at least the last two and one-half years. Although defendant Brettschneider took exception to the characterization of the system of overnight “placements” as a “program”, (Tr., p. 518), the record reveals that is precisely what it has become. As is evidenced by the SSC records submitted to the court, once a child is placed in the Commissioner’s custody, a.placement at an authorized foster care facility should be located. There are two main types of foster care facilities: (1) “voluntary agencies” which contract with DSS to receive foster children and which may reject children who fall outside their contractual criteria; and (2) direct care agencies run by DSS itself. In addition, there are several categories of foster care facilities, which are defined by state regulations as follows: Foster Boarding Homes: Foster Family Home Care: Care provided to a child in a certified or approved foster home pursuant to requirements of state regulations. 18 N.Y.C.R.R. § 433 (McKinney’s 1983). Congregate Care: Agency Operated Boarding Home: A family-type home for the care and maintenance of not more than six children. It is operated by an authorized agency in quarters owned, leased or otherwise controlled by such agency. The home may provide care for more than six brothers and sisters of the same family. There are no restrictions on the age of children who can be placed in this type of home. 18 N.Y.C. R.R. § 441.2(i) (McKinney’s). Group Home: A family-type home for the care and maintenance of not less than seven, nor more than 12 children over the age of five. The home is operated by an authorized agency in quarters owned, leased, or otherwise controlled by that agency. The minimum age is not applicable to siblings placed in the same facility. An individualized determination must be made regarding placement of children under ten at a group home. 18 N.Y.C.R.R. § 441.2(h) (McKinney’s). Group Residence: An institution for the care and maintenance of not more than 25 children operated by an authorized agency. The age restrictions applicable to group homes also govern placements in group residences. 18 N.Y.C.R.R. § 441.2(s) (McKinney’s 1983). Institution: Any facility for the care and maintenance of 13 or more children operated by a child care agency. Individualized determinations are required for placement of children under twelve. 18 N.Y.C.R.R. § 441.2(f) (McKinney’s). Diagnostic Reception Center A facility in which children can be placed to have their special needs assessed. There is no limitation on the size of the facility. SSC allocations workers are responsible for locating placements for the children while they wait in field offices in each of the five boroughs. If a “regular” or stable placement cannot be found, allocations workers try to obtain an overnight “placement” for the child. (Tr., pp. 79-81). After an overnight “placement,” children are returned to the field offices the next day to wait for another stable or overnight “placement.” (Tr., p. 81). Each time a child gets a new overnight “placement,” he or she spends some portion of the day in an SSC field office. (Tr., pp. 83-84). If an overnight “placement” cannot be located by 5:00 p.m., workers in SSC’s Placement Division, who are assigned on a rotating basis to night coverage, attempt to find what one supervisor called a “rest stop,” for the child. (Tr., pp. 223-25). If no beds can be found, an attempt may be made to identify a place for the child to sleep by consulting the availability of “Commissioner access beds.” (Tr., p. 228). “Commissioner access beds” are “extra beds” that SSC developed in conjunction with the voluntary foster care agencies and the City’s direct care program. (Tr., p. 547). If no place for the child to sleep can be found by 10:00 p.m., children from all the borough field offices are sent to the ECS office in Manhattan where they sleep overnight. ECS is open on a 24 hour basis because children come into the system all night long as a result of emergency removals. (Tr., p. 228). At this court’s July Hearing, defendant Brettschneider testified that he attempted to eliminate the practice of having children sleep at ECS beginning in March 1985. (Tr., p. 660). He was, however, unsuccessful. Elizabeth Mayberry (“Mayberry”), Administrative Director of the SSC’s Office of Field Services and the Office of Placement and Accountability, testified that she believed that seven children slept at ECS in March and thirteen in April 1986. (Tr., p. 247). SSC statistics indicate that between May 5 and June 11, 1986, 38 or 40 children slept at the ECS office. (Pl.Ex. 85). At the July 1986 hearing, defendants’ witnesses represented that children no longer sleep at the ECS office and that they hadn’t for the past month. The practice has, however, continued. In June 1986, SSC expanded the number of rooms used for sleeping at ECS. (Tr., p. 304). According to SSC’s daily placement lists, at least 16 children spent the night in the ECS office during an 18 day period in February 1987. (Affidavit of Rose E. Fire-stein dated March 10, 1987 (“March 10, 1987 Firestein Aff.”), p. 4; Affidavit of Victoria B. Elsberg dated March 10, 1987 (“March 10, 1987 Elsberg Aff.,”) pp. 12-13) . On July 16, 1987, three children apparently slept at the ECS office. Two of those children suffered from conjunctivitis. The other, a four month old infant, had Sudden Infant Death Syndrome. (Affidavit of Victoria B. Elsberg dated August 21, 1987 (“August 21, 1987 Elsberg Aff.”), p. 14) . As recently as July 28, 1987, two more children stayed at the ECS office overnight. (August 21, 1987 Elsberg Aff., p. 14). The number of children exposed to overnights at ECS pales in comparison with those who have endured the overnight experience in general. At the time of the July 1986 hearing, defendant Brettschneider estimated that three to four hundred children had already been subjected to the overnight program. (Tr., p. 519). The defendants calculated that in the months immediately preceding the hearing, the number of children on repeated overnights (“placed” three or more times) were as follows: March — 79; April — 81; May— 103. Plaintiffs initially estimated that “the number of potential class members subject to the challenged policies and practices of defendants ... is at least 49 every weekday.” (Affidavit of Jane Sufian (“Sufian Aff.”), 1f 13; Pl.Ex. A attached thereto). The defendants themselves stated that “each day ... the field offices of SSC are filled with as many as 30 or more of these young people waiting to move from place to place on a nightly basis.” (Proposal for the Door Program, Def.Ex. 4 to Brettschneider Aff., p. 2). It appears that more children have been forced to endure repeated overnights since the July 1986 hearing than prior to that time. Plaintiffs’ analysis indicates that the number of children who have been moved from place to place on overnights at least three times per month are as follows: 1986 July: 117 August: 201 September: 132 October: 187 November: 192 December: 189 1987 January: ' 200 February: 246 March: 390 April: 375 May: 275 June: 315 (Affidavit of Victoria B. Elsberg dated January 80, 1987 (“January 30, 1987 Elsberg Aff.”), 117, Table I; March 10,1987 Elsberg Aff., 117, Table I; August 21, 1987 Elsberg Aff., 1111, Table I). Between May 1986 and July 1987, several children experienced one “placement” after another for extended periods of time. At least one child had more than 65 “placements.” Almost one thousand children had between five and nine “placements.” (August 21, 1987 Elsberg Aff., U 14, Table III). Some children had periods in which they were “placed” almost daily. (August 21, 1987 Elsberg Aff., If 13, Table II; March 10,1987 Elsberg Aff., 1110, Table IV; January 30, 1987 Elsberg Aff., 1110, Table IV). They were repeatedly “placed” in the same or alternating facilities though they spent their days in the field offices. (August 21, 1987 Elsberg Aff., 1119, Table V; March 10, 1987 Elsberg Aff., 1115, Table VII; January 30, 1987 Elsberg Aff., 1112, Table V). While the numbers presented above are important, nothing is more instructive than the individual stories of the children for whom entering foster care has virtually meant joining the ranks of New York’s homeless. The parties have presented this court with a tremendous amount of descriptive and technical information concerning the lives of fourteen children who were repeatedly subject to overnight “placements” and days in field offices. In addition, those children were the subject of extensive testimony at the July 1986 hearing. Their stories follow. Individual Children Children who enter foster care have, by definition, experienced major trauma. Repeat overnighters have had even more than their share of trouble before entering the system. The testimony and submissions uniformly indicate that they come to the Commissioner with disproportionately serious medical, psychological, emotional and behavioral problems. The record also reflects that once in the system, they are subject to the most stress and receive the least care. The childrens’ histories are divided below according to statutory classification. Pseudonyms have been used. Abused and Neglected Children: Ricardo Ricardo (“Ricky”) Doe is a thirteen year old Hispanic child who has been in and out of the foster care system since August 1985. He and his twelve year old sister, Lizette, were first voluntarily placed by their uncle. The children had previously been staying with their stepfather, who had allegedly sexually abused Lizette. For the month of August 1985, the children were placed at Abbott House. (Plaintiffs’ Hearing Exhibit (“Pl.Ex.”) 14, A-9). While there, Ricky was described as having behavioral, problems. In September 1985, he was discharged into the custody of his natural father, who took the child to Pennsylvania. (Pl.Ex. 15, F-68). Ricky later returned to New York with his father and, on December 11, 1985, had his next encounter with foster care. At that time, Ricky’s father filed a petition to place him in the custody of the Kings County Family Court as a PINS. The PINS petition alleged that Ricky did not respond to his father’s commands, was disrespectful of his elders, and had disappeared from home for the last four days. (Pl.Ex. 13, A-4). On December 17, the Family Court remanded Ricky to DSS for temporary care. (Pl.Ex. 13, F-38). Ricky was placed at the Queensboro Society for Prevention of Cruelty to Children. (Pl.Ex. 15, F-40). Six days later, he was placed at the Williams-burg Reception Center, where he remained until February 1986. (Pl.Ex. 15, F-33). While at Williamsburg, Ricky underwent two psychological examinations. The examiners found that Ricky has an above average non-verbal capacity and an average verbal capacity. His actual reading ability was substantially below capacity. (Pl.Ex. 14, A-17). One of the examiners described Ricky as moderately depressed, and having a “slightly nightmarish” mood, primarily as a result of his confused family situation. (Pl.Ex. 14, A-18). The examiners concluded that “considerable work” needed to be done with Ricky before he could be returned to his family, and that he should remain on his current placement until further evaluation of his needs could be made. (Pl.Ex. 14, A-18, 21). There is no record that any further evaluation of Ricky’s needs was conducted. Instead, Ricky was discharged and placed at Lakeside School from February 18 to April 10, 1986. According to the records, Ricky demonstrated that he was a good student who should remain in an education program, though he was acting self-destructively and was deliberately disobeying rules. On April 10, however, Lakeside returned Ricky to the Family Court at his request. Lakeside then refused to take Ricky back. (Pl.Ex. 15, F-37, 82). April 10, 1986, Ricky was placed at St. John’s, another child agency, without the knowledge of his parents, who could not be located. (Pl.Ex. 15, F-18, 85). The failure of Ricky’s parents to visit or contact their son resulted in SSC’s decision to file a neglect petition against them on April 29, 1986. In the neglect petition, the caseworker characterized Ricky’s mental condition as “impaired or ... in imminent danger of becoming impaired.” (Pl.Ex. 15, F-61-62). The next day, Ricky was discharged from St. John’s and replaced by SSC. (Pl.Ex. 15, F-51). By the end of April, Ricky had been placed at six different foster care facilities and returned home once. Beginning in early May 1986, Ricky began his experience as an overnighter. On May 2, Ricky was rejected by six group facilities, including St. John’s, which characterized him as “manipulative.” (Pl.Ex. 14, A-27-29). On May 8, he was assigned overnight to Baychester and presumably spent the day in an SSC field office. Baychester was followed by a weekend at the Marolla Group Home (“Marolla”) in the Bronx. (Pl.Ex. 14, A-30). Ricky was returned to the Brooklyn SSC field office on May 12, were he repeatedly spent his afternoons while subject to the night-to-night program. (Pl.Ex. 14, A-31). The next night, Marolla refused to take Ricky back, stating that he had been smoking crack while at that facility. He was accepted that evening by the Mission of the Immaculate Virgin (“MIV”) infirmary on Staten Island, where he remained for nine days. On May 22, Ricky was taken back to Family Court and again remanded to SSC. (Pl.Ex. 14, A-32). Ricky was again “placed” on June 27, 1986 and July 29, 1986. (Affidavit of Carolyn A. Johnson dated August 24, 1987 (“Johnson Aff.”), p. 3). During Ricky’s more than one month experience on overnights, no attempt was made to keep him in touch with any part of his family, including his sister, who was in foster care in Brooklyn. (Hearing Transcript (“Tr.”), p. 139) Nor is there any indication that the evaluations and recommendations of the examining psychiatrists were followed or even considered. After his series of multiple overnight “placements,” Ricky was characterized as “confused, highly disruptive, depressed and acting out.” (Tr., p. 453). Richard Richard Roe is eleven years old. He is Black. He came to Family Court for the first time on April 16, 1986 in Bronx County. Richard’s mother filed a PINS petition on that day in which she alleged that Richard was habitually truant and disobedient, frequently returned home after curfew, and sometimes not at all, and was generally beyond parental control. (Pl.Ex. 18, F-l). Richard was adjudicated to be a PINS and was remanded to the Commissioner for temporary care. (Pl.Ex. 17, A-2). Later that day, he was remanded to the St. Mary of the Angels Home (“St. Mary’s”), where he remained for two weeks until, he was again remanded to the Commissioner. (Pl.Ex. 17, A-4, 6). At that time, no physical or mental problems were indicated. (Pl.Ex. 17, A-5). From April 30 until May 12, 1986, Richard was subjected to repeated overnight “placements.” He spent his days in SSC’s Bronx field office, without any evaluation or other programming. (Affidavit of Rose Firestein dated May 19, 1986 (“Firestein May 19, 1986 Aff.”), p. 2). He was sent out to various overnight shelters, sometimes without an evening meal. (Firestein May 19, 1986 Aff., p. 2). On May 2, Richard was referred to an overnight shelter in Pleasantville, New York, after being turned down by six other facilities. His overnight placement was switched three more times in the next eight days. (PLEx. 17, A-7-8). On May 12, 1986, the Bronx Family Court ordered that the child not be returned to Abbott House, where he’d slept the previous night. Richard was then accepted by the MIV Drumgoole Diagnostic Unit. On May 13, however, when he arrived there, that facility also rejected him. (PLEx. 17, A-12). On May 19, Richard was rejected for re-intake by St. John’s because of “unmanageable behavior.” He was assigned to Marolla on overnights for the next three days. (PLEx. 17, A-15). On May 22, the Family Court dropped Richard’s PINS determination and he was remanded to SSC as a neglected child. (PLEx. 18, F-53-54). On May 23, after another Family Court remand, Richard was sent to the Brunner facility after eleven shelters refused to care for him. During the next five days he was “replaced” two more times. (PLEx. 17, A-14-15). On June 3 and June 4, Richard had two more “placements.” (Johnson Aff., p. 3). The record does not reveal where Richard was from-June 4 until June 9. Richard was finally remanded to the Pleasantville Diagnostic Center on June 9, 1986. (PLEx. 18, F-56). We have no report of a change in Richard’s placement since that time. Faith Faith Koe, who is twelve years old and Black, was first brought to SSC’s attention on November 20, 1985, when she was the subject of a report of child abuse or maltreatment. She suffers from asthma, epilepsy, and chlamydia, a sexually transmitted disease requiring vaginal penetration. (PLEx. 24, F-2-4). On December 9,1985, Faith was remanded to SSC’s custody because she allegedly threatened her mother with a knife. Jacobi Hospital refused to admit her because they determined she was not psychotic. (PLEx. 23, A-3). During the next four nights, she was sent to two different overnight facilities, Evergreen and Theriot, after being rejected by as many as twelve facilities per night. Those shelters refused to take Faith for reasons ranging from behavior problems to her age. (PLEx. 23, A-4, 5). On December 13, 1985, foster care placement was discontinued because a relative agreed to take responsibility for Faith. (PLEx. 23, A-6). On February 11, 1986, yet another report of suspected child abuse was filed about Faith. In the three days prior to the report, Faith had broken a door in her aunt’s home, and had attempted suicide by overdosing on Tegretol, an anti-seizure medication. Tegretol had been prescribed for Faith on her previous period in SSC’s care. Faith went to Jacobi Hospital by herself. Her mother did not accompany her. (PLEx. 24, F-25-26). On February 15, 1986, a doctor at Jacobi Psychiatric Unit requested that Faith be placed in foster care because she would be in imminent danger if returned home. He concluded that she was socially aggressive, especially at home, but that she usually improved outside the household. As a result, Faith was placed, on an overnight basis, at the Hageman Center. (PLEx. 24, F-25-31). There is no record of where Faith was placed between February 15 and March 21, 1986. On February 26, 1986, Faith’s mother filed a PINS petition alleging that Faith was sexually active and beyond her control. (PLEx. 22, A-l). As a result, Faith was remanded by the Bronx Family Court as a PINS child for temporary care on March 21 of this year. (PLEx. 24, F-45). Faith was placed that night at the Hageman Center. The next day she left. She went home, which resulted in another family crisis. (PLEx. 24, F-47). On April 8, Faith was again remanded to the Commissioner’s care. (PLEx. 24, F-50). Over the course of the next week, SSC sent Faith to three different centers on an overnight basis. (PLEx. 23, A-17). She spent her days at the Bronx field office. Because Faith was not receiving care, Faith’s mother — who had herself been accused of neglecting her child — removed Faith from the office and brought her home on numerous occasions, despite the problems that would occur. (Affidavit of Burt Grayman dated May 9, 1986 (“Gray-man Aff.”), p. 2). Between April 18 and April 29, 1986, Faith was sent to Geller House. Geller House, however, refused to keep her because she was “verbally and sexually provocative.” Geller House recommended that Faith be placed in a psychiatric hospital. (PLEx. 23, A-19-21). Faith, however, was not placed in a psychiatric hospital. (PLEx. 23, A-19-21). Instead, the Commissioner put her in Laconia Group Home. Faith promptly disappeared. (PLEx. 24, F-53). Though the record is unclear, Faith was apparently at home for the next two weeks. She returned to the field office on May 13 and was disruptive. (PLEx. 25, F-54). Nevertheless, Faith continued to spend her weekday afternoons at the field office for the next two weeks. Her mental condition grew worse. (PLEx. 24, F-53-56). On May 15, 1986, Faith’s caseworker wrote that he felt powerless to help her. (PLEx. 24, F-55). By May 27, the record reflects that Faith was “depressed and fearful” of going to the Elmhurst Group Home overnight due to problems there in the past. (PLEx. 24, F-56). Between May 13 and June 3, Faith was placed in five different group homes on overnights and rejected by many others. (PLEx. 24, F-54-58). As was her pattern, Faith ran away on June 3, 1986 and was not seen again until June 9. The Commissioner again sent her on an overnight. (PLEx. 24, F-58). On June 11, Faith was examined at Jacobi Hospital, where a doctor concluded that Faith’s major problems were behavioral in nature, involving “aggression and undersocialization.” He recommended placement in a “correctional facility” to help her gain control of the massive amount of “rage within her.” (PLEx. 24, F-59). This recommendation went unheeded as well. From June 11 until August 5, 1986, Faith was “placed” 11 times. (Johnson Aff., p. 4). Dr. William Kaplan testified extensively regarding Faith’s history. Having reviewed her record, he concluded that Faith’s deep mental and physical problems made her a poor candidate for the overnight program as far back of February 1986. (Tr., pp. 391-93). Dr. Shepherd, who also testified about Faith, noted that no ongoing provisions were made for her physical needs, as well as the administration of her medication. (Tr., pp. 675-676). Dr. Kaplan predicted that continued exposure to repeated overnight “placements” would cause further deterioration of Faith’s emotional state. According to Dr. Kaplan, Faith needed to be placed in a “psychiatric facility that [was] locked for diagnostic observation.” (Tr., p. 394). Takeesha Takeesha Boe is an eight year old who has been the subject of SSC investigation since she was a one year old because of reports that she was beaten and abandoned by her parents. (Pl.Ex. 27, F-l, 16, 36, 37). In May 1984, a report of suspected child abuse accusing Takeesha’s mother of failing to take proper care of the child, was found to be “indicated.” (Pl.Ex. 27, F-65). In November 1985, a report was filed by the social worker at Takeesha’s school, stating that the child came to school smelling of urine and with scratches on her face. She was apparently afraid of her mother, who was suspected of having a drinking problem. Takeesha’s mother appeared intoxicated at her daughter’s school on November 21, 1985. (Pl.Ex. 27, F-77, 78). Takeesha’s file contains a note which she wrote at school sometime in January 1986. The note reads: “I will kill myself by rahning [running] away, hanh [hang] myself or [illegible].” On January 21, as a result of that note, an appointment was made for Takeesha at the Columbia Presbyterian Psychiatric Depression Clinic. The appointment was never followed through. (Pl.Ex. 25, pp. 3-4). More suicide notes were found at school in a notebook on January 30, (Pl.Ex. 27, F-123). That same day, a report was filed by a school guidance counselor stating that the child was bruised from being kicked by her father. (Pl.Ex. 27, F-98). A neglect petition was then filed. Takeesha was remanded to the Commissioner for temporary custody. (Pl.Ex. 25, p. 8). From January 30 until February 24, 1986, Takeesha was placed in six different facilities. She spent the night of January 30 on an overnight to the St. Christopher-Janice Clarkson Foster Home. The next day, the foster mother requested Takeesha’s removal because she smelled. (Pl.Ex. 26, A-2). She spent the next five days at the Little Flower Foster Home. Little Flower also refused to keep her, complaining that she was disruptive. (Pl.Ex. 26, A-3). Takeesha spent the next two weeks, until February 19,1986, at Abbott House, where a psychiatric evaluation was conducted. The report stated that the child had been verbally and sexually provocative during her time at the facility and had willingly engaged in oral sex with her fifteen year old roommate. (Pl.Ex. 26, A-5). The report recommended that Takeesha be placed in a “therapeutic residential setting able to provide both a therapeutic milieu and intensive psychiatric and psychotherapeutic services for younger children ASAP.” (Pl.Ex. 26, A-6). Takeesha spent the next six days at the SSC field office, with no provision for education or recreation. (Affidavit of Elizabeth Stuart Calvert dated May 19, 1986 (“Calvert Aff.”), p. 3). On February 20, 1986, she stayed at Evergreen; on February 21 she was at the 85th Street Home. (Pl.Ex. 26, A-12,13). There is no record of where Takeesha spent her nights on February 22 and 23. On February 24, 1986, Takeesha was finally sent to St. Agatha’s, a well-regarded diagnostic center. She stayed at St. Agatha’s until April 28. (Calvert Aff., p. 3). The psychiatric evaluation performed at St. Agatha’s concluded that Takeesha had a great deal of potential and needed full psychological testing, therapeutic intervention and “exposure to a sustaining environment” in order to develop this potential. (Pl.Ex. 27, F-152-156). In her three months at St. Agatha’s, Takeesha’s mental attitude seems to have improved markedly. At the time of the hearing before this court, one expert characterized Takeesha’s behavior and mental outlook as stabilized, and showing “remarkable progress over .a short period of time.” (Tr., p. 445). As of June 18, 1986, Takeesha was placed in Graham-Windham Residential Center. She has been characterized as having made “some adjustments” there. (Pl.Ex. 27, F-216-17). She has apparently had no further placements. (Johnson Aff., p. 5). John John Goe is seventeen years old and Hispanic. From ages five through thirteen, John was in foster care. At age thirteen he was returned to his mother’s custody. (Affidavit of Diane Tukman dated May 19, 1986 (“Tukman Aff.”), p. 3). At age fourteen, John reentered the foster care system and was placed for one year in a group home in Puerto Rico. (Tukman Aff., p. 3). On January 11, 1984, John was placed by ECS at the Drumgoole Diagnostic Unit of MIV. (Calvert Aff., p. 3). On February 9, 1984, SSC filed a neglect petition on John with the Family Court. SSC charged that John’s mother failed to supply adequate food, shelter and clothing; and exposed him to excessive corporal punishment and abandonment. (Pl.Ex. 36, F-2). On March 19, 1984, the Family Court ordered placement of John and his three brothers with the Commissioner for 18 months. (Pl.Ex. 36, F-4). For over one year, John was placed in the Baychester Diagnostic Reception Center. John’s overall cognitive functioning was at a slightly higher level at the end of this period. His level of intellectual functioning moved from “moderately” to “mildly” deficient. John’s “personality dynamics” were described as “very primative adolescent,” confused, impulsive, mildly provocative, with minimal intellectual abilities. John was also evaluated as needing continued residential support for at least another year. (Pl.Ex. 36, F-209-11). John, however, was not permitted to stay at Baychester. On June 3, 1985, John embarked on the first of a series of multiple “placements.” He went first to the Franklin Manor Group Home of the Episcopal Mission Society. (Pl.Ex. 36, F-230). Only three weeks after his reassignment, a psychiatrist reported that John’s negative behavioral characteristics were “certainly magnified” since Baychester. (Pl.Ex. 36, F-263). Because John had disobeyed the rules at the Episcopal Mission Society, including stealing other residents’ .belongings, the doctor “strongly recommended” that John be returned to Baychester. (Pl.Ex. 36, F-263-264). On June 28, 1985, the Episcopal Mission Society transferred John to MIV. He was then transported to SSC’s Bronx field office the following Monday. (Pl.Ex. 35, A-10). Between June 28 and July 4,1985, the record is unclear as to where John was placed. During July 1985, John was subjected to a series of overnights as follows: July 5: Arverne (for the weekend). (Pl.Ex. 35, A-12). July 8: Assigned to Atlantic, but John did not go to Atlantic because he said he believed children were beaten there. (Pl.Ex. 35, A-13). July 11: Arverne (overnight). (Pl.Ex. 35, A-14). July 12: John was sent back to the Bronx field office and was once again sent to Arverne overnight. (PLEx. 35, . A-15). July 13: No Record. July 14: No Record. July 15: John was again returned to the Bronx field office and was sent to the McDougal Diagnostic Center overnight. (PLEx. 35, A-16). July 17: John went AWOL from McDougal and returned to the Bronx field office. He was then sent to Atlantic. (PLEx. 35, A-17). July 18: No Record. July 19: No Record. July 20: No Record. July 21: No Record. July 22: John was back at the Bronx 'field office and was again sent to Atlantic. (PLEx. 35, A-17-18). August 9: St. John’s. (PLEx. 36, F-309). Aug. 13: John is “placed” at Queens SPCC because a Bronx Family Court judge ordered that SSC “replace” the child. (PLEx. 36, F-265). While at the Queens SPCC, John received another psychosocial evaluation. The doctor recommended that John be placed in a group home that is not too large. The doctor reported that John had “some inner resources and strength, however, without this support [at a smaller group home] he will become more despairing and could be potentially suicidal.” (PLEx. 36, F-291). On September 13, 1985, John was again transferred to Arverne. He was immediately “discharged” because he made a pass at a female worker. (PLEx. 35, A-18). During the month of October 1985, John was placed with the following agencies: Oct. 18: MIV (for the weekend). (PLEx. 35, A-21). Oct. 21: Arverne (overnight). (PLEx. 35, . A-21). Oct. 22: McDougal Diagnostic Center accepted John, but he went AWOL. The record states that John made “threats to staff-disrespectful-threatened with rape.” (PLEx. 35, A-22-23). Oct. 24: Arverne (overnight). (PLEx. 35, A-23). Oct. 28: Atlantic (PLEx. 35, A-24). Oct. 30: N.Y. Catholic Guardian Group Home. (PLEx. 35, A-25). While John was at Catholic Guardian, another psychological examination was performed. The report that resulted stated that “there is evidence that neurological impairment has had a negative impact on John's functioning.” Examination further revealed that John was “very vulnerable to regression in an unstructured situation.” (PLEx. 36, F-313, 314). John remained at Catholic Guardian. On February 20, 1986, however, another Report of Suspected Child Abuse or Maltreatment was filed— this time against a Catholic Guardian Group Home supervisor. The Report alleged that the Group Home supervisor physically threw John out of the Group Home in his underwear, causing “finger marks (red welts)” under his right armpit. (PLEx. 36, F-342). The marks were observed by another Catholic Guardian worker. Despite the incident and the report, John remained at Catholic Guardian for another month. On March 10, 1986, John was once again condemned to repeated overnights and brief placements in different facilities. March 10: Brunner Group Home. (Tukman Aff., p. 5). March 11: John was placed at MIV but did not want to go there and went AWOL. (PLEx. 35, A-27). March 12: John was “In Service” requesting placement. (PLEx. 35, A-27). March 13: Baychester accepted John for an overnight. (Pl.Ex. 35, A-28, 29). March 14: Marolla Group Home. (Pl.Ex. 35, A-29). March 20: Brunner for an overnight. (Pl.Ex. 35, A-29). March 21: Holland Group Home until March 24. (PLEx. 35, A-30). March 26: McDougal accepted John but he refused to go saying he would be hurt there. (Pl.Ex. 35, A-31). No record of where John spent the night. March 27: Atlantic for the weekend. (Pl.Ex. 35, A-31). March 31:. Baychester, where, after an overnight, he was not picked up and was reported as being “loud and abrasive, demands placement other than McDougal or Baychester.” (PLEx. 35, A-32, 33). April 2: Atlantic overnight. (PLEx. 35, A-33). April 4: Baychester for the weekend. (PLEx. 35, A-32). April 7: McDougal on overnights until April 10. (PLEx. 35, A-35, 36). April 11: Theriot rejected John but was later ordered to accept him for an overnight by the Division Director. (PLEx. 35, A-36, 37). April 14: John was in the Bronx field office awaiting “replacement.” Atlantic finally accepted him. (PLEx. 35, A-37, 38). May 5: John walked into the ECS office and asked for a placement.. He was sent to the Promesa Group Home. (PLEx. 36, F-369-370). May 6: John was discharged from Atlantic. (PLEx. 36, F-371). May 13: John was “placed” at St. Mary’s of the Angels until May 14. (Tukman Aff., p. 5). May 18: John’was “placed” overnight and returned to the field office in the morning. (PLEx. 36, F-376). May 19: John showed up at the field office. No placement was found, so he spent the night at ECS. (PLEx. 36, F-377). May 21: John walked into ECS at 11:10 p.m. and said he had to leave McDougal due to problems with other residents, after which John’s bed was given to another child. (PLEx. 36, F-378-386). John’s days and nights continued to be spent without any stable place to go. John began continually appearing at all hours of the night in the Emergency Adult Unit (“EAU”) located in the same building as ECS. (PLEx. 36, F-384-87). McDougal ultimately gave John’s bed to another child permanently. (PLEx. 36, F-386). From August 1986 through May 1987, John was “placed” at least 29 additional times. (Johnson Aff., pp. 4-5). Eleven of those “placements” occurred during April 1987 alone. (Johnson Aff., pp. 4-5). John himself summarized his situation best. On July 15, 1986, a call was received from Creedmoor’s adult facility where John’s mother was being kept. The facility social workers stated that John was at Creedmoor, sleeping on the sofa in the lounge. They reported that John said that he was homeless. (PLEx. 36, F-367). PINS Children: Felix Felix Moe is sixteen years old and Hispanic. On June 17, 1985, Felix was adjudicated to be a PINS child. He was remanded to SSC after a determination that he had left school “never to return.” (PLEx. 21, F-20, 40). Felix was sent overnight to the Arverne Group Home on June 18, 1985. (PLEx. 20, A-5). Felix was then sent to the MIV infirmary. He was placed at MIV’s Doris Street Group Home, but went AWOL on July 25. (PLEx. 21, F-26-27). He was discharged to his mother on July 30. SSC apparently did not care for him again until January 1986. (PLEx. 21, F-61, 64). In the six month period that he was out of the Commissioner’s custody, Felix was not controlled by his parents. Felix was in Puerto Rico during the summer. He had to be returned to New York because he was “out of control.” (Pl.Ex. 21, F-41). He was found living in the subways in September, suffering from pneumonia and bronchitis, but left the hospital in which he was subsequently placed. (Pl.Ex. 21, F-32-33, 42-43). Felix was finally remanded to SSC on January 13, 1986. (Pl.Ex. 21, F-70). He then began his odyssey in the overnight program, which continued for almost four months. In psychiatric examinations which took place during the month of January 1986, Felix’s problem was diagnosed as primarily attributable to his poor home life. He was not found to be psychotic, nor was he suffering from any other mental disorder. The recommendation at that time was that Felix remain in his present placement at St. John’s, where he had apparently gotten along well. The examining physician also recommended that Felix receive further psychological evaluation and follow-up guidance. (Pl.Ex. 21, F-87). Contrary to the psychiatrist’s recommendations, Felix was subjected to overnight placements from January through April 1986. On each weekday he was returned to the Bedford Avenue SSC field office in Brooklyn. (Affidavit of Wilson Arnes dated May 19, 1986 (“Arnes Aff.”), p. 1). Felix apparently spent enough time in school to be suspended by Manhattan High School on March 12 for allegedly attempting to assault a principal. (Pl.Ex. 21, F-110). Otherwise, no services or treatment were provided to Felix. In the 92 day period between January 10 and April 11, Felix was placed 36 separate times at 11 different facilities. (Arnes Aff., p. 3). SSC records concerning Felix during his near four month sojourn in the overnight program evidence physical and mental deterioration. Felix was hospitalized from February 12 until February 18,1986, and again on March 5 overnight, due to an asthmatic condition. (Pl.Ex. 20, A-18, 22). Dr. Levitt testified that Felix’s behavioral patterns were getting worse. He exhibited signs of deterioration, including fights, anti-social behavior; and the beginnings of drug abuse and criminal activity. (Tr., pp. 133-137). According to Dr. Levitt, Felix’s experiences will likely cause him to lose all faith and confidence in adults. (Tr., p. 136-137). Felix was, in Dr. Kaplan’s opinion, a “poor candidate” for the night-tonight program and is in desperate need of a highly structured environment. (Tr., p. 453-454). The negative change in Felix’s behavior became so extreme that by March 18, 1986, when the Kings County Family Court once again remanded Felix to the Commissioner’s custody, the court pleaded: “Please stop moving [Felix] from place to place with frequent changes.” (Pl.Ex. 19, F-111). Upon the Commissioner’s resumption of custody, Felix was sent to the MacDougal facility for overnight “placement.” (Pl.Ex. 20, A-28). On March 19, he was sent to Brunner for the night, and returned to the SSC field office the next morning. (Pl.Ex. 20, A-26). The next day, March 20, Felix was sent to the Holland Group Home and again returned to the field office the next morning. (Pl.Ex. 20, A-26, 27). On March 21, Felix was sent to MIV for the weekend. He was returned to the field office on Monday, March 24, 1986. (Pl.Ex. 20, A-27). On April 10, 1986, the Marolla Group Home refused to take Felix back, after having had him on overnights at least five times before. (Arnes Aff., p. 3). Marolla refused him because he was “deteriorating” due to the continual overnight “placements.” (Pl.Ex. 20, A-34). Felix was instead sent to the Brunner Group Home, from which he had apparently gone AWOL just three nights before. (Pl.Ex. 21, F-2, 7). The record does not contain information about Felix’s placement from April 21 to June 6. On that date, he was sent to the Atlantic Diagnostic Center. He disappeared that same night. (Pl.Ex. 21, F-8). Our information on Felix ends there. Tanya Fourteen year old Tanya Poe has been in SSC’s custody since December 18, 1985 when she was found to be a PINS by the Bronx Family Court. Tanya’s mother alleged that Tanya refused to obey her commands and that she had been away from home for the prior week. (Pl.Ex. 43, p. 1). On that date, Tanya was “placed” at the Euphrasia Residence for diagnostic testing. The record contains no clinical report or indication that any testing actually took place. (Pl.Ex. 44, A-l, 9). For three months, Tanya was shuttled from shelter to shelter. (Pl.Ex. 44, A-l-7). Between March 25 and April 19, 1985, Tanya was on overnights at MIV in Staten Island. (Pl.Ex. 44, A-4). During this period, Tanya spent her afternoons at the Bronx SSC office. She missed meals on several occasions as a result of SSC’s transportation schedule between the office and her overnight “placement.” (Firestein May 19, 1986 Aff., p. 3). She was given no schooling. Nor did she have the opportunity to engage in organized recreational programs. (Firestein May 19, 1986 Aff., p. 3). MIV administered a blood test, and on April 18 Tanya tested positive for pregnancy. (Pl.Ex. 44, A-5). As a result, Tanya could no longer stay at MIV. She was sent to the Rosalie Hall facility. (Pl.Ex. 45, F-ll, 12). There is no record of Tanya’s placement between April 22 and May 13, 1986, when Tanya was remanded to SSC for the fourth time. She was “placed” in the New York Foundling Hospital and arrangements were finally made for a diagnostic examination at the Lakeside Center. (Pl.Ex. 45, F-15, 16). As of the court’s hearing, Tanya’s diagnostic evaluation had not yet been conducted. We have no record of further placements. Diane Diane Noe, nine years old and Black, was adopted by her present parents when she was four years old. Before entering the foster care system in 1986, Diane had a history of stealing from her classmates in the various schools which she had attended on Long Island. (Pl.Ex. 39, F-45-46). In November 1984, Diane began running away from home and made allegations of child abuse against her parents, which were later shown to be unfounded. (Pl.Ex. 39, F-46). Eventually Diane was placed in a temporary foster home in West Islip and later in a “permanent” home in Wyandanch. Diane could not adjust to her placement and, by February 1985, was back with her parents. In October 1985 Diane moved to Brooklyn with her parents. (Pl.Ex. 39, F-47). On December 10, 1985, Diane claimed to have been abandoned by her father when he went to pick her up after school. (Pl.Ex. 39, F-2). SSC investigated the allegation and concluded that it was unfounded. The investigation revealed that Diane had run away and caused her family stress. Diane’s mother desired residential placements for Diane because she feared for the child’s safety. The mother stated that Diane needed constant supervision and daily therapy. (Pl.Ex. 39, F-12). On January 16, 1986, Diane’s mother filed a PINS petition. She alleged that Diane was AWOL from home for extended periods, that she stayed out late, that she was late for school and that she stole from her classmates. (Pl.Ex. 37, p. 1). In response to the petition, the Kings County Family Court remanded Diane to the Commissioner for a diagnostic examination at the Family Reception Center (“FRC”) from January 30 until March 24, 1986. (Pl.Ex. 37, p. 3). While at the FRC, a diagnostic was done on Diane. The results indicated that she was a “seriously emotionally disturbed girl whose parents are overwhelmed.” (Pl.Ex. 39, F-48). The examination also showed that Dian