Family Law Keyed to Weisberg

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Smith v. Organization of Foster Families for Equality and Reform (Offer)

Citation. Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14, 1977 U.S. LEXIS 108 (U.S. June 13, 1977)

Brief Fact Summary. Appellees foster parents brought suit claiming that the procedures governing the removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the Constitution.

Synopsis of Rule of Law. Consideration of the private interest affected; the risk of an erroneous deprivation of such interest by the procedures; and, the government’s interest requires the conclusion that those procedures satisfy constitutional standards.

Facts. Appellees, individual foster parents and an organization of foster parents, brought a civil rights class action on their own behalf and on behalf of children for whom they have provided homes for a year or more. They sought declaratory and injunctive relief alleging that the procedures governing the removal of foster children from foster homes violated the Due Process and Equal Protection Clauses. A group of natural mothers of children in foster care intervened on behalf of themselves and others similarly situated. The district court determined that the preremoval procedures were an unconstitutional deprivation of due process by denying the foster child a hearing before transfer to another foster home or return to their natural parents.

Issue. Did the court correctly conclude that the New York procedures governing the removal of foster children from foster homes were an unconstitutional deprivation of due process by denying the foster child a hearing before transfer to another foster home or return to their natural parents?

Held. The District Court erred in holding that the preremoval procedures presently employed by the State are constitutionally defective.
The policy of the system is that it is generally desirable for the child to remain with or be returned to the natural parent because the child’s need for a normal family life will usually best be met in the natural home and parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered. The State has opted for foster care as one response when the natural parents are unable to properly care for their children.

The distinctive features of foster care are that it is care in a family, it is noninstitutional substitute care, and it is for a planned period, either temporary or extended. Under this scheme children may be placed in foster care either by voluntary placement or by court order. Most placements are voluntary, occurring when family crisis makes it impossible for natural parents to provide a stable home life. Under voluntary placements, a child must be returned within 20 days of notice from the parent absent a written agreement providing for a specified date.

Foster parents provide care under a contractual arrangement with the agency, and are compensated for their services. The agency generally may remove the child on request, and the foster parent may cancel the agreement at will. The law transfers care and custody to the agency, but most functions ordinarily associated with legal custody are the responsibility of the foster parent. The foster parent does not have the full authority of a legal custodian, and the natural parent’s placement of the child with the agency does not surrender legal guardianship. The parent retains the authority to act in certain circumstances, and the natural parent has the obligation to visit the foster child and plan for his future. Children may also enter foster care by court order under similar rules as voluntary placement, except the parent is not entitled to return of the child on demand.

The provisions at issue come into play when the agency determines to remove the foster child from the foster home, either because it is in the child’s best interests to transfer him to another foster home or to return the child to his natural parents. The agency is required to notify the foster parents in writing 10 days in advance of removal. If they object, they may request a conference, and the foster parent may appear with counsel. The foster parent will be advised of the reasons for removal, and afforded an opportunity to submit reasons why the child should not be removed. The proposed removal is stayed pending outcome of the conference. If the child is removed, the foster parent may appeal to the Department of Social Services, however, removal is not automatically stayed pending this review. Regulations applicable to New York City provide even greater procedural safeguards, in the form of a preremoval trial.

From the standpoint of natural parents, foster care has been condemned as class-based intrusion into the family life of the poor. It is claimed that many voluntary placements are actually coerced by threat of neglect proceedings. Foster parents as well as natural parents also complain that children often stay in temporary foster care for much linger than contemplated by the theory of the system. It is clear that children often develop deep emotional ties with their foster parents, yet such ties do not seem to be regarded as obstacles to transfer of the child from one foster placement to another.

The inquiry into whether the District Court correctly held that the present procedures preceding the removal from a foster home of children resident there a year or more are constitutionally inadequate begins with the question of if appellees have asserted interests within the Fourteen Amendment’s protection of liberty. Appellees contend that when a child has lived in a foster home for a year or more, a psychological tie is created which constitutes the foster family the true psychological family of the child. They argue this creates a liberty interest in the survival as a family. Appointed counsel for the children disagrees, stating that the foster parents have no such liberty interest independent of the interests of the foster children. The intervening natural parents also oppose the foster parents, arguing that recognition of the procedural right claimed would undercut both the substantive family law of New York and their constitutionally protected right of family privacy.

There is a private realm of family life which the state cannot enter. However, the usual understanding of family implies biological relationships, which is not present in the case of the usual foster family. A biological relationship is not the exclusive determination, and a loving and interdependent relationship between an adult and a child in his care may exist even in the absence of a blood relationship. For this reason this Court cannot dismiss the foster family as a mere collection of unrelated individuals.

There are also important distinctions between the natural and foster family. A foster family has its source in state law and contractual arrangements. Whatever emotional ties may develop have their origins in the arrangement in which the State has been a partner from the outset. Additionally, in this case it is virtually unavoidable to afford procedural protection to a liberty interest of one person without derogating the substantive liberty interest of another. Nonetheless, it is unnecessary to resolve the question of if appellees have a protected liberty interest, because narrower grounds exist to support this Court’s reversal.

The District Court erred in holding that the preremoval procedures presently employed by the State are constitutionally defective. Considering the private interest affected; the risk of an erroneous deprivation of such interest by the procedures; and, the government’s interest, requires the conclusion that those procedures satisfy constitutional standards.

Turning first to the New York City procedures, the court found the procedures inadequate on four grounds, none of which this Court finds persuasive. First, the court found the independent review insufficient because it was available only upon request of the foster parents. But any liberty interest is a right of family privacy, and it follows that the Court should expect that the foster parents will request the hearing if they wish to continue the relationship to preserve the stability of the family. Second, the court faulted the procedure because the participation is limited to the foster parents and agency, not making the natural parents or the child parties. When the transfer sought is from one foster home to another, any interest needed protected is in the foster family, not the natural family. Furthermore, nothing in the procedure prevents consultation of the child’s wishes. Third, the court faulted the procedure for not extending to the removal of a child from foster care
to be returned to his natural parents. However, any liberty interest existing in the foster family is significantly weaker in the case of removals preceding return to the natural parent. Finally, the court pointed out that the New York City procedure coincided with the informal conference and postremoval hearings provided by state law. The State does not violate the Due Process Clause by providing alternate or additional procedures.

Outside New York City, foster parents are also provided with the preremoval judicial hearing. The district court found three defects in this judicial process. First, the proceeding is available only to foster children in care for 18 months or more. There is no need to assume that the assumed emotional attachments liberty interest would ripen at less than 18 months. The other two findings were addressed in the preceding analysis and were found to be meritless.

Concurrence. I would hold that the interests asserted by the appellees are not of a kind that the Due Process Clause of the Fourteenth Amendment protects. The goal of foster care is not to provide a permanent substitute or natural or adoptive parents, but to prepare the child for his return to his real parents or placement in a permanent adoptive home. The development of close emotional ties between foster parents and a child may hinder the child’s ultimate adjustment, and provide a basis for the termination of the foster family relationship. The foster parent relationship is State created, and should be ruled by the State.

Discussion. The did not address the question of if the foster parents had a protectable liberty interest, but rather determined the case based upon the finding that the procedures in place were constitutionally sufficient if a liberty interest existed. The concurrence would have found no such protectable liberty interest.