Children have standing to challence the State's child placement laws

This case examines the procedures in New York when a child is removed from their biological parents and the child's relatives want to provide care. Not everyone is allowed to adopt: those convicted of certain crimes are unable to do so, and if the evidence suggest the relatives had abused other children, their application will also be denied. This case is brought by the children, claiming these procedures violate the constitutional right to family integrity.

The case is B.B. v. Hochul, issued on February 2. This case does not actually review the legality of these child adoption procedures. We have a more esoteric issue to deal with: do the children have standing to bring this lawsuit? 

Standing can get in the way of a good lawsuit. You need to show you are in a position to benefit from a favorable court ruling. The district court said there is no standing because the children currently live with their relatives  and, for those who do not, they cannot show any injury because they were not under the state's care. Other children did not have standing, the trial court said, because they only alleged inadequate treatment, not suboptimal care.

The Court of Appeals (Park, Menashi and Kahn) reverses, finding the plaintiffs suffered a "concrete injury" under Article III of the Constitution. Without that finding, you cannot sue anyone simply to obtain a favorable court ruling. Here, the children have standing because "placements with non-relatives make children less likely to find permanent placements and increase the risk of psychological and other harms." Such harms are cognizable under the Constitution

The children also have standing because the Constitution itself protects familial relationships from unwarranted governmental interference. The Constitution does not actually say that, but the Supreme Court has ruled that such rights are implied under the Constitution. What is more, the Constitution ensures that people under the state's custody, be it prisoners or children in these circumstances, can legally expect the government to keep them free from harm.

This looks to be an important standing ruling from the Second Circuit, which goes on to find that the children may bring this lawsuit because they can trace their injuries to the allegedly unconstitutional child placement policy and its mandatory disqualification rules. As for whether these rules are legal, the case returns to the district court, as the Court of Appeals is "a court of review, not of first view."