Graham v. CHILDREN'S SERVICES DIVISION, ETC. , 39 Or. App. 27 ( 1979 )

591 P.2d 375 (1979) 39 Or.App. 27

Cecil GRAHAM and Eva Louise Graham, Husband and Wife, Respondents,
v.
CHILDREN'S SERVICES DIVISION, Department of Human Resources of the State of Oregon, and J.N. Peet, Administrator, Appellants.

Nos. 99435 and 99436; CA 9922.

Court of Appeals of Oregon.

Argued and Submitted August 31, 1978. Decided March 5, 1979.

Al J. Laue, former Sol. Gen., Salem, argued the cause for appellants. With him on appellants' brief were James A. Redden, Atty. Gen., and Paul R. Romain, Deputy Atty. Gen., Salem. On the reply brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Paul R. Romain, Deputy Atty. Gen., Salem.

Levi J. Smith, Portland, argued the cause and filed the brief for respondents.

Before SCHWAB, C.J., and THORNTON and ROBERTS, JJ.

THORNTON, Judge.

The Children's Services Division (CSD) appeals from a decision of the trial court that respondents Cecil and Eva Graham are entitled to a contested case hearing before CSD can refuse to consent to respondents' adoption of Mrs. Graham's grandchildren. The consent of CSD is required because CSD was awarded permanent custody of the children^[1] when the parental rights of the children's father, Mrs. Graham's son, were terminated under ORS 419.523 and 419.525. The trial court found that respondents have a constitutionally recognized liberty interest in their grandchildren requiring the protection afforded by such a hearing. See, ORS 183.310(2)(a).^[2]

Hence, the issue before us is whether grandparents of children in whom parental rights of the grandparents' child have terminated, and who at one time had custody of those children, have a constitutionally protected interest in such grandchildren which requires the procedural protection of an adversary hearing before an agency empowered to withhold its required consent to adoption of the grandchildren by the parents.^[3]

The father of the children was convicted of the murder of their mother. The act was committed in the presence of one of them. The children were placed in temporary foster care for five months, and then legal custody of them was awarded to the Grahams. Fourteen months later a trial court terminated the father's parental rights and awarded permanent custody of them to CSD, which was to find a suitable adoptive home for the children. It also denied the Grahams' petition for adoption. Five months later we affirmed the termination and denial of the petition for adoption. State ex rel. Juv. Dept. v. Kenneth M., 27 Or. App. 185, 555 P.2d 933, rev. den. (1976). The respondents applied again to CSD for adoption of the children, but CSD withheld its consent. The respondents then petitioned for review in the circuit court, alleging that they were entitled to a contested case hearing before CSD could withhold its consent. The circuit court agreed. We disagree, and reverse.

The court below found that the Grahams have a protected liberty interest, arising either out of their status as grandparents of the children or from their association with the grandchildren as legal custodians for 14 months, of which the state may not deprive them without due process of law.

In finding that the Grahams had a protected interest as grandparents, the trial court relied heavily on Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977). In Moore the court struck down an ordinance which prohibited heads of households from sharing their homes with the offspring of more than one of their children. A plurality opinion held that there was a substantive due process right of members of an extended family to live together, arising from American tradition, which could not lightly be denied by a local government.^[4]

CSD argues that here the family has already been destroyed by the termination of the children's father's parental rights, and thus Moore does not apply. Respondents claim that the instant case concerns a greater infringement on the family than did Moore, since it involves not minor criminal sanctions but the deprivation of respondents' continued contact with their grandchildren.

Moore is inapposite here. It concerned the right of a family to live together and not the right to adopt. It does not create in grandparents a liberty or property interest in their grandchildren as prospective adoptive children.

The Utah Supreme Court has held that where there are no parents to assert their vested legal claims to their children, the inchoate right of the next of kin ripens. Hence, when a mother surrendered her rights to her child when faced with a termination proceeding, the court required the agency with whom the child had been placed to allow the grandmother of the child a hearing before denying her petition for custody or adoption of the child. Wilson v. Family Services Div., Region Two, 554 P.2d 227 (Utah 1976).

We do not agree with the rationale of Wilson that a grandparent, by virtue of his status as a grandparent, has a right of adoption superior to that of a nonrelative. See, Mahoney v. Linder, 14 Or. App. 656, 514 P.2d 901 (1973); State ex rel. Juv. Dept. v. Hayes, 16 Or. App. 438, 519 P.2d 104 (1974). Additionally, the decision in Wilson rested, at least in part, on a finding that the agency could act arbitrarily and unreviewably. Such is not the case in Oregon, where our Administrative Procedures Act provides for review of noncontested cases. ORS 183.484. Also, the juvenile court may retain jurisdiction over the children involved, even though it cannot modify any orders while an adoption proceeding is pending. Children's Services Division v. Weaver, 19 Or. App. 574, 528 P.2d 556 (1974); ORS 419.527(1)(a). Furthermore, we cannot agree that an inchoate right to grandchildren always arises in the absence of parents.

The court below also found a liberty interest arising from the Grahams' custody of the children for the 14 months immediately preceding the termination of Mrs. Graham's son's parental rights. Several recent cases from various jurisdictions have explored the possibility that foster parents and prospective adoptive parents have rights entitled to due process protection.

In C.V.C. v. Superior Court, 29 Cal. App. 3d 909, 106 Cal. Rptr. 123 (1973), a California Court of Appeals found that prospective adoptive parents had an interest in the child entitled to protection, and thus "[i]n the absence of imminent danger to the child, the grievous loss threatening the prospective parents outweighs the state's interest in summary termination" of their custody of the children. 29 Cal. App.3d at 917, 106 Cal. Rptr. at 128. A federal district court has ruled that an informal foster mother, who had taken care of a child for most of its two and one-half years of life, was entitled to the same due process protection as a natural or legal parent when the state sought to establish that the child was neglected. James v. McLinden, 341 F. Supp. 1233 (D.Conn. 1969).

The Supreme Court has assumed, without deciding, that foster parents have some liberty interest, and held that the state statutes in question provided them with any procedural protections to which they were entitled when the state sought removal of children from foster homes. Smith v. Organization of Foster Families, 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977). However, it noted that such an interest was, of necessity, quite limited, as it was based upon state statutes and contracts. 431 U.S. at 846, 97 S. Ct. 2094.

The Fifth Circuit refused to find protected liberty interests for a foster family which sought to adopt the child placed with it. Drummond v. Fulton Cty. Dept. of Family, etc., 563 F.2d 1200 (5th Cir.1977), cert. den. 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).^[5] It found that the state in question considered foster homes to be temporary, and that the development of a relationship giving rise to a liberty claim would be inimical to the goals set for foster homes as transitions between two permanent homes. 563 F.2d at 1206-07. It also held that an attempt to remove a child was not defamatory to the foster family, and thus did not infringe on a liberty interest in the family's reputation. 563 F.2d at 1207-08.

Although these cases would be quite relevant were the question before us the existence of, and scope of protection to be afforded to, any liberty interest the Grahams had in continued custody of their grandchildren, that is not the issue we must address. Rather, it is claimed that the Grahams have a liberty interest arising out of their prior custody of their grandchildren. That custody was ended by court order at the same time Mrs. Graham's son's parental rights were terminated. We find no support for the thesis that custody long extinguished by court order after a judicial inquiry into the sort of custody which would best serve the interests of the children gives rise to any continued liberty interest, assuming that such an interest theretofore existed.

In summary, we conclude that grandparents have no liberty interest herein and no rights superior to a nonrelative applying for permission to adopt. Hence, we find no liberty interest of the respondents requiring the protection of a contested case hearing.

When respondents sought review of CSD's denial of consent in the circuit court, as required by ORS 183.484(1),^[6] they apparently sought not only a determination of whether they were entitled to a contested case hearing, but also, if the court found they were not so entitled, review of the matter as a noncontested case, pursuant to ORS 183.484(3). Since their petition was adequate for review, they are now entitled to review in the circuit court. ORS 183.484(3).^[7]

Reversed and remanded.

NOTES

[1] The Children's Services Division * * *, acting in loco parentis, may consent to the adoption of a child who has been:

"* * *

"(b) Permanently committed to it by order of a court of competent jurisdiction * * *.

"* * *." ORS 109.316(1)(b).

See ORS 109.390(3). Such consent is jurisdictional in adoption proceedings. Greybull v. Children's Services Div., 29 Or. App. 889, 565 P.2d 773 (1977); State ex rel. Juv. Dept. v. Kenneth M., 27 Or. App. 185, 555 P.2d 933, rev. den. (1976); McCleskey v. Welfare Comm., 4 Or. App. 308, 477 P.2d 235, rev. den. (1971).

In this case the natural father and only remaining parent of the children gave his consent to his parents' adoption of the children, after termination proceedings were instituted but before their conclusion. Generally, when the natural parents give their consent to adoption of their children, the adoption proceedings should precede termination proceedings. In re Koger, 206 Or. 307, 292 P.2d 791 (1956); In re Adoption of Smith, 38 Ill. App. 3d 217, 347 N.E.2d 292 (1976), cert. den. 431 U.S. 939, 97 S. Ct. 2651, 53 L. Ed. 2d 256 (1977). However, where, as here, the adoption is intended primarily to circumvent the termination, the focus should first be on the welfare of the children, rather than the qualifications of the prospective adoptive parents. Hence, the termination proceedings should be concluded before the petition for adoption is considered. State ex rel Juv. Dept. v. Kenneth M., supra 27 Or. App. at 190-91, 555 P.2d 933.

[2] ORS 183.310(2) provides in pertinent part:

"``Contested case' means a proceeding before an agency:

"(a) In which the individual legal rights, duties or privileges of specific parties are required by * * * Constitution to be determined only after an agency hearing at which such specific parties are entitled to appear and be heard * * *

"* * *."

The mode of procedure in and judicial review of contested cases is delineated in ORS 183.415 through 183.482.

[3] The role grandparents may play in adoption and termination proceedings has not been completely determined. We have held that grandparents have no standing to contest the adoption of their grandchildren. Mahoney v. Linder, 14 Or. App. 656, 514 P.2d 901 (1973). Grandparents also have no standing, in general, to appeal from orders terminating the rights of parents of their grandchildren. State ex rel. Juv. Dept. v. Hayes, 16 Or. App. 438, 519 P.2d 104 (1974). In Hayes we declined to decide whether it was possible for grandparents to intervene in termination proceedings, 16 Or. App. at 442, n. 3, 519 P.2d 104, and thus gain standing to appeal.

[4] Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977), was the first case in which the Supreme Court found a protected liberty interest in an extended family. Earlier decisions had involved various aspects of establishing and maintaining a nuclear family. See cases cited in Moore, 431 U.S. at 499, 97 S.Ct. at 1932.

[5] The state court took a similar approach, but also found a lack of property interest in the foster parents. See Drummond v. Family, etc., Services, 237 Ga. 449, 228 S.E.2d 839 (1976), cert. den. 432 U.S. 905, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977). Accord: W.C. v. P.M., 155 N.J. Super. 555, 383 A.2d 125 (1978).

[6] See, e.g., Fadeley v. Oregon Ethics Comm., 25 Or. App. 867, 551 P.2d 496 (1976); N.W. Envir. v. Air Poll. Auth., 16 Or. App. 638, 519 P.2d 1271, rev. den. (1974).

[7] Consent of Children's Services Division is jurisdictional in adoption proceedings involving children permanently committed to the agency. See note 1 and accompanying text, supra. There is considerable dictum to the effect that CSD's refusal to consent cannot be challenged. The cases discussing the unreviewability of CSD's refusal to consent all involve adoption proceedings. Greybull v. Children's Services Div., 29 Or. App. 889, 565 P.2d 773 (1977); Children's Services Div. v. Zach, 18 Or. App. 288, 525 P.2d 185 (1974); McCleskey v. Welfare Comm., 4 Or. App. 308, 477 P.2d 235, rev. den. (1971). None deals, as does this case, with a direct challenge to CSD's refusal to consent to an adoption. Furthermore, those cases rest, at least in part, upon the fact that CSD is in loco parentis as to the children permanently committed to it. See McCleskey v. Welfare Comm., supra at 312, 477 P.2d 185. CSD is not a biological parent. The fact that CSD must make the same sort of decision a parent may make does not give it the broad, unreviewable discretion of a human parent.