Robert George Drummond and Mildred Pauline Drummond v. Fulton County Department of Family & Children's Services , 563 F.2d 1200 ( 1977 )

RONEY, Circuit Judge:

Plaintiffs, Robert and Mildred Drum-mond, a white couple, acted as state-designated foster parents of a mixed race child for over two years. When the defendant state adoption agency decided to remove the child for permanent placement in another home, plaintiffs commenced this action under 42 U.S.C.A. § 1983. Alleging denial of their rights under both the equal protection and the due process clauses of the Fourteenth Amendment, they sought preliminary and permanent injunctive relief, which was denied by the district court. Although a panel of this Court reversed, Drummond v. Fulton County Department of Family & Children’s Services, 547 F.2d 835 (5th Cir. 1977), the full Court finds no deprivation of constitutional rights and affirms the dismissal of plaintiffs’ complaint.

Initially, the en banc Court adopts the discussion, reasoning and result contained in the dissenting opinion to the panel decision in' this matter as the correct statement of the law in this case. That opinion is reported in 547 F.2d at 857-861. We further address the issues here, however, in view of the oral argument before the full Court, a subsequent case decided by the United States Supreme Court, and supplemental briefs filed with this Court.

The factual background of this dispute is set out in full in Judge Tuttle’s thorough opinion for the panel which considered this case. 547 F.2d 835-857. A brief recapitulation will suffice to place the following discussion in context.

In December 1973 in an emergency situation, a one-month-old mixed race child named Timmy was placed for temporary care in the home of Mr. and Mrs. Drum-mond by the Fulton County children’s service agency. Lengthy proceedings were commenced to determine whether the child should be permanently removed from his natural mother’s custody and placed for adoption.

Within a year, the Drummonds had become sufficiently attached to Timmy to request permission to adopt him. The Drum-monds had not signed an agreement that they would not try to adopt their foster child, as is common practice with many placement agencies. Although the level of care provided by them as foster parents had consistently been rated excellent, there was an emerging consensus within the defendant child placement agency charged with Timmy’s care that it would be best to look elsewhere for a permanent adoptive home. When this was explained to the Drum-monds in March 1975 they appeared to acquiesce. By August of that year, however, they had renewed their request to adopt Timmy.

The child was not legally freed for adoption by the Georgia courts until September 1975. Because this signaled the end of any attempt to return Timmy to his natural mother, the agency began a more focused consideration of what ultimate placement would be best for Timmy. After a number of discussions with the Drum-monds, a final decision-making meeting was held in November 1975 with 19 agency employees present. Although the Drummonds were not present at this meeting, caseworkers who had dealt with them during the past two years did attend. As a result of that meeting a final agency decision was made to remove Timmy from the Drum-mond home and to deny the Drummonds’ adoption application. It is clear that the race of the Drummonds and of Timmy and the racial attitudes of the parties were given substantial weight in coming to this conclusion. The agency employees were also aware that as Timmy grew older he would retain the characteristics of his black father. A few months later the plaintiffs filed suit.

A hearing on the request for a preliminary injunction was scheduled for January 23, 1976, nine days after the suit was begun. During that period some discovery was conducted by the parties. At the beginning of the hearing, the trial court consolidated the hearing on the preliminary injunction with a trial on the merits, pursuant to its discretionary powers under Fed.R. Civ.P. 65(a)(2).

Although cited as error on appeal, the consolidation represented a responsible exercise of judicial discretion in view of the essentially legal nature of the contest and the need for prompt action on this case. See generally 7 Moore's Federal Practice 165.04[4] (2d ed. 1975).

After hearing six witnesses and arguments of counsel the court, by verbal order, dismissed the complaint on the merits. In rendering that decision, the court made the following finding:

It is obvious that race did enter into the decision of the Department. [I]t appears to the Court . that the consideration of race was properly directed to the best interest of the child and was not an automatic-type of thing or of placement, that is, that all blacks go to black families, all whites go to white families, and all mixed children go to black families, which would be prohibited.

On appeal counsel was appointed to represent Timmy’s separate interest in this litigation.

The case as now presented to the en banc Court formulates four major issues for resolution: (1) did the action of the defendant constitute a denial of equal protection; (2) do the Drummonds have a protected liberty or property right in their relationship with Timmy; (3) does Timmy have such a right; and (4) if such rights exist, how much procedural protection is required in order to safeguard them?

I.

The Drummonds and counsel for Timmy contend that the state denied them equal protection of the laws because of the extent to which race was considered in making the adoption decision. Although the complaint alleged that race was the sole determining factor, the district court found that this was not the case, and the finding was not clearly erroneous. The argument has thus centered on the question of whether a state agency, charged with the responsibility of placing for adoption a child in its custody, may take into consideration the race of the child and the race of the prospective adoptive parents without violating the equal protection clause of the United States Constitution.

The manner in which race was considered in this case frames the precise issue before us. The district court found that race was not used in an automatic fashion. The Drummonds’ application was not automatically rejected on racial grounds. This finding may not be disturbed here because not clearly erroneous. Fed.R.Civ.P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). But can race be taken into account, perhaps decisively if it is the factor which tips the balance between two potential families, where it is not used automatically? We conclude, as did another court which grappled with the problem, that “the difficulties inherent in interracial adoption” justify the consideration of “race as a relevant factor in adoption, . . . ” Compos v. McKeithen, 341 F.Supp. 264, 266 (E.D.La.1972) (three-judge court).

In this regard, the Supreme Court has recently provided some guidance. It appears that even if government activity has a racially disproportionate impact, the impact alone does- not sustain a claim of racial discrimination. “Proof of racially discriminatory intent or purpose is required to show a violation . . . .” Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). There has been no suggestion before this Court that the defendants had any purposes other than to act in the best interest of the» child when it considered race. Furthermore, the Supreme Court has recently stated in the sensitive area of voting apportionment that the consideration of race is not impermissible. United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). As the plurality opinion in that case remarks, where race is considered in a nondiscriminatory fashion and there is “no racial slur or stigma with respect to whites or any other race,” there is no discrimination violative of the Fourteenth Amendment. 430 U.S. at 165, 97 S.Ct. at 1009.

In concluding that there has been no denial of equal protection in these circumstances, we note the following factors.

First, consideration of race in the child placement process suggests no racial slur or stigma in connection with any race. It is a natural thing for children to be raised by parents of their same ethnic background.

Second, no case has been cited to the Court suggesting that it is impermissible to consider race in adoption placement. The only cases which have addressed this problem indicate that, while the automatic use of race is barred, the use of race as one of the factors in making the ultimate decision is legitimate. In re Adoption of a Minor, 97 U.S.App.D.C. 99, 101, 228 F.2d 446, 448 (1955); Compos v. McKeithen, 341 F.Supp. 264, 266 (E.D.La.1972).

Third, the professional literature on the subject of transracial child placement stresses the importance of considering the racial attitudes of potential parents. The constitutional strictures against racial discrimination are not mandates to ignore the accumulated experience of unbiased professionals. A couple has no right to adopt a child it is not equipped to rear, and according to the professional literature race bears directly on that inquiry. From the child’s perspective, the consideration of race is simply another facet of finding him the best possible home. Rather than eliminating certain categories of homes from consideration it avoids the potentially tragic possibility of placing a child in a home with parents who will not be able to cope with the child’s problems.

Fourth, in the analogous inquiry over the permissibility of considering the religion of would-be adoptive parents, numerous courts have found no constitutional infirmity. See generally, Annot. Religion as a Factor in Adoption, 48 A.L.R.3d 383 (1973). Those cases make the same distinction as this Court makes in the racial context. So long as religion is not an automatic factor, its consideration as one of a number of factors is unobjectionable.

Finally, adoption agencies quite frequently try to place a child where he can most easily become a normal family member. The duplication of his natural biological environment is a part of that program. Such factors as age, hair color, eye color and facial features of parents and child are considered in reaching a decision. This flows from the belief that a child and adoptive parents can best adjust to a normal family relationship if the child is placed with adoptive parents who could have actually parented him. To permit consideration of physical characteristics necessarily carries with it permission to consider racial characteristics. This Court does not have the professional expertise to assess the wisdom of that type of inquiry, but it is our province to conclude, as we do today, that the use of race as one of those factors is not unconstitutional.

II.

In order to make out a claim of deprivation of Fourteenth Amendment due process rights a plaintiff must demonstrate first, that he has been deprived of liberty or property in the constitutional sense, and second, that the procedure used to deprive him of that interest was constitutionally deficient. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

A.

The Drummonds assert two possible constitutional liberty and property interests. The first involves a concept which plaintiffs have denominated the “psychological family”; the second, a stigma to their reputation alleged to accrue upon the rejection by the agency of their application to adopt Timmy.

Plaintiffs maintain that during the period Timmy lived with them mutual feelings of love and dependence developed which are analogous to those found in most biological families. By so characterizing their home situation they seek to come within the protection which courts have afforded to the family unit. They assert that their relationship to Timmy is part of the familial right to privacy which is a protected interest under the Fourteenth Amendment. See, e. g., Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). As the “psychological parents” of Timmy, they claim entitlement to the parental rights referred to in numerous decisions. See, e. g., Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).

The argument that foster parents possess such a protected interest was placed squarely before, and discussed by, the Supreme Court in its recent decision in Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) [hereinafter OFFER]. Although the Supreme Court did not find it necessary to resolve whether such an interest exists, Justice Brennan’s discussion of that claim is helpful to our analysis. He first considered the elements which have traditionally been thought to define the concept of “family.” Of course, the Court recognized that “the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association.” Nonetheless, the Court then noted several differences between foster and natural families, particularly the fact that the foster parent relationship has its genesis in state law, unlike the biological relationship, and that with foster parents there is often a natural parent seeking to assert a competing liberty interest.

We conclude that there is no such constitutionally protected interest in the context of this case. An understanding of the role of the foster parent in a child placement helps make this conclusion plain. In the search for adoptive parents, thorough investigations are made so that long range considerations may be given substantial weight. Ga.Code Ann. §§ 74-409, 74-410 (Supp.1976). Potential adoptive parents are evaluated forward in the full family context through a child’s adulthood, marriage, offspring, and backward to the “adoptive” grandparents, uncles, aunts, and cousins. The attitudes of other family members are examined. In short, the goal is to duplicate the relationship that most persons have with their natural parents during their entire lives.

The Georgia Department of Human Resources has promulgated an Adoption Services Manual which sets forth the philosophy it uses in finding adoptive parents. The manual states:

Adoption services are focused on meeting the needs of children by securing for them permanent families. Some children who need parents are infants; many are older children; some have physical, intellectual and emotional handicaps; some are children of minority groups; others are children of mixed heritage. A permanent home or plan is the right of every child. Inherent in the process of finding parents for children is the recognition that children have certain basic needs. The philosophy of the Division is to seek for children who need adoptive homes parents who are emotionally and physically capable of assuming the responsibility of parenthood and who are flexible enough to accept them for their intrinsic worth.

During this process in Georgia, children are placed in foster homes as an alternative to institutional care for what is clearly designed as a transitional phase in the child’s life. Ga.Code Ann. § 24A-1403 (1976). Foster parents are thus considered only on the basis of the quality of temporary care they can be expected to provide. Therefore, in the eyes of the state, which creates the foster relationship, the relationship is considered temporary at the outset and gives rise to no state created rights in the foster parents. Drummond v. Fulton County Department of Family & Children Services, 237 Ga. 449, 228 S.E.2d 839 (1976). As Justice Stewart remarked in his concurring opinion in OFFER, “any case where the foster parents had assumed the emotional role of the child’s natural parents would represent not a triumph of the system, to be constitutionally safeguarded from state intrusion, but a failure.” 431 U.S. at 861, 97 S.Ct. at 2119.

Here, the only time potential parents could assert a liberty interest as psychological parents would be when they had developed precisely the relationship

which state law warns against the the foster context. As Justice Stewart goes on to say in OFFER, it is .hard to “believe that such breakdowns of the . . . system must be protected or forever frozen in their existence by the Due Process Clause of the Fourteenth Amendment.” 431 U.S. at 862, 97 S.Ct. at 2119. There is no basis in the Georgia law, which creates the foster relationship, for a justifiable expectation that the relationship will be left undisturbed. Cf. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). True liberty rights do not flow from state laws, which can be repealed by action of the legislature. Unlike property rights they have a more stable source in our notions of intrinsic human rights. The very fact that the relationship before us is a creature of state law, as well as the fact that it has never been recognized as equivalent to either the natural family or the adoptive family by any court, demonstrates that it is not a protected liberty interest, but an interest limited by the very laws which create it. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

It needs noting that this conclusion does not necessarily control every “foster family” situation, but only those in which a child placement agency charged with the custody of a child, places that child for temporary care. Other situations will have to be addressed on a case by case basis.

The plaintiffs assert a second liberty interest in an attempt to bring themselves within the ambit of recently decided due process cases. They claim that the decision to deny them the right to adopt Timmy and to remove him from their home casts a stigma upon their reputation. They assert they satisfy all requirements which have been judicially imposed to make out a constitutional claim for harm to reputation.

In order to implicate such an interest, plaintiffs must demonstrate first that they have been denied a right previously recognized by the state in conjunction with a defamatory finding about them. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Second, they must challenge this finding as factually inaccurate. Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). Finally, there must be publication of the defamation outside the context of litigation. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Although the plaintiffs have tried to satisfy each of these tests, they have not shown any liberty interest in “reputation-plus” which requires procedural due process.

First, the findings about the plaintiffs are not those which can be considered defamatory. In Paul the plaintiff was accused of being a shoplifter, in Codd of attempting suicide, and in Bishop of insubordination and “conduct unsuited to an officer.” These are all allegations which might have had collateral effects when those plaintiffs sought employment, and are allegations which, if false, might have given rise to state law defamation actions. Here, the sole finding about the Drummonds is that in the judgment of the agency, they are not the best available parents for Timmy, at least in part for a reason beyond their control, i.e., their race. Their treatment of Timmy as foster parents was spoken of in glowing terms. It would thus seem there has been no defamation at all.

Second, although the Drummonds challenge the ultimate conclusion that they would not be the most suitable adoptive parents for Timmy, they have not alleged any particular factual errors in the agency’s information or findings. They are in fact white, and the agency had an accurate picture of their age, health, education and other relevant data. Absent some indication that they would be able to “clear their names” at a hearing, they are not invoking a protected interest. Codd, supra.

Finally, the information upon which the agency acted was never made public until this litigation. It is normal for foster children to eventually be removed from foster homes. Nothing publicly occurred which would east any aspersion upon the Drum-monds. Nor could the agency action in any way affect the Drummonds’ attempt to adopt other children in the future.

Thus we conclude that the Drummonds have no protectable liberty interest in this case.

B.

Independent counsel for Timmy claims a liberty right personal to Timmy which he asserts must be dealt with in constitutional due process terms. The interest upon which he bases this claim is one which he has chosen to call the “right to a stable environment.” He argues that a child has a liberty right not to be moved from home to home, without a prior hearing, particularly in light of the significant literature which indicates a traumatic effect of such moves on young children. Counsel insists this right exists regardless of whether the child is in a natural, adoptive or foster setting and in all other temporary care situations.

Due to the novelty of this contention, counsel cites no authority in support of such stability interest.. He relies on cases such as In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), for the proposition that a juvenile’s “status” cannot be changed without procedural due process. In those cases, however, a protected liberty interest was clearly at stake, since the juveniles involved were facing delinquency charges which could have resulted in incarceration. The liberty interest was thus not an interest in a “stable environment,” or in not being moved around, but in staying out of jail.

Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), seems to speak against such an interest as asserted here. There, a state prisoner was transferred from a medium security to a maximum security facility because he was suspected of having started a fire in the first prison. He filed a suit contending that a hearing was required before the transfer. The Court, unable to discern the protected interest involved, denied relief. Notwithstanding the fact that the transfer was motivated by specific misconduct on the part of the prisoner, and had a clearly punitive purpose and effect, the Court found no liberty interest. Other recent cases have led one author to the analysis that the Supreme Court “has grown increasingly uncomfortable with the concept of open ended and vaguely defined due process interests. It appears to prefer an analysis that is both more concrete as well as more restricted in its application.” The Supreme Court, 1975 Term, 90 Harv.L. Rev. 56, 102 (1976), There certainly is no concrete or well-defined interest shown by the facts of this case.

Here, the state’s motive in interrupting Timmy’s environment at any point was always to move him to a place which it considered superior, over the long range, for his particular needs at the time. Since Timmy can point to no source for a right in conflict with that state program, we hold that Timmy has no liberty interest as asserted here. This decision by its facts is necessarily applicable only to an infant of tender years placed in a foster home for the length of time and under the circumstances here involved. We cannot by decision here address every conceivable situation, in some of which a child may have acquired some interest, as alluded to in Justice Brennan’s opinion in OFFER.

III.

In OFFER the Supreme Court assumed arguendo the existence of a protected liberty interest, and then proceeded to test the New York child placement scheme against the strictures of due process. It was able to do this because the extensive procedural safeguards incorporated into the New York scheme were ultimately found sufficient protection for a liberty interest of any magnitude. The holding of OFFER, therefore, is that whatever the strength of the protected interest, New York provided adequate safeguards.

This Court is unable to follow that approach in this case. It cannot be gainsaid that the Georgia mechanism for removing a child from a foster home is much more informal and much less “judicial” than the New York model. Of course, OFFER does not mandate the New York model as constitutionally necessary in every case. Nonetheless we face a scheme which is admittedly less rigorous in its procedural trappings. Thus, we have been required to face head on and resolve the question which was the subject of the Supreme Court’s assumption. In doing so we have concluded that there is no liberty interest here of full-fledged constitutional magnitude.

OFFER itself, however, by pretermitting the question of the existence of a protected interest, leaves open the possibility that some such an interest might exist. Although no liberty interest of substantial magnitude is present in the instant situation, some might find a lesser interest in these facts deserving of some protection against arbitrary conduct. We thus consider whether the procedures afforded in Georgia were adequate to protect whatever interest might be at stake. The nature of the Georgia procedures is set out in detail in the panel opinions reported in 547 F.2d 835. Of course, “[t]he required degree of procedural safeguards varies directly with the importance of the private interest affected and the need for and usefulness of the particular safeguard in the given circumstances and inversely with the burden and any other adverse consequences of affording it.” Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1278 (1975). See also Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S.) 272, 280, 15 L.Ed. 372 (1855). The Fourteenth Amendment is not so inflexible as to require a trial-type hearing for every interest felt worthy of protection. Nor is the Georgia scheme to be measured against New York’s, since OFFER in no sense elevates the New York scheme into a constitutional standard.

IV.

To the extent there may be some undefined interest in this case that could not be treated by the state arbitrarily, we note that the process afforded by defendants was sufficient to comport with the Fourteenth Amendment mandate in connection with such interest.

It has been frequently stressed that the requirements of due process are flexible and vary with time and circumstances. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Quite recently, the Supreme Court articulated the test to be used in determining what process is due in any particular circumstance. That test requires consideration of (1) the private interest at stake; (2) the risk of erroneous decisions under the present procedure and the improvement in decision making which would flow from additional procedural safeguards; and (3) the governmental interest involved. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Applying this test to the case at bar reveals that the procedures currently in use strike a constitutionally adequate compromise. The private interest here is presumably the privacy, reputation, and stability concerns discussed above, the interest flowing from the love, affection and concern developed between the Drummonds and Timmy.

The agency decision in this case to be made under any procedural format, as all concede, is “what placement is in the best interest of the child?” The subsidiary inquiries which must be addressed in deciding this question are complex and numerous. The present procedure is designed to maximize information in answering these questions. Several interviews were had with the foster parents. The child was observed and tested mentally and medically. Data was collected about the child’s natural mother and father. Persons trained in various skills, including psychology and social work are involved in the process. Informality was used to elicit spontaneous and accurate responses to sensitive inquiries. In sum, the present system seems designed to obtain the most accurate answer possible to the ultimate difficult question and the risk of error is minimized. There has been no indication that additional or more accurate information could be produced at a more structured trial-type hearing that would lead to a superior decision about Timmy’s placement. The reason is obvious. In most hearing situations, the question to be resolved is one of fact. Here, however, the ultimate question is essentially one of policy. Child placing is an art, not a science that can be computerized to follow rigid rules. The “best” home for Timmy is basically a subjective determination. Should intellectual opportunity be stressed over financial or athletic opportunity? Is a rural setting preferable to the city? What age should his adoptive parents be? In what order of the social structure? Should a given child be placed with older siblings, younger siblings or no siblings? The questions could go on for pages. These questions are policy inquiries, not factual disputes. The utility of a hearing in such a situation is doubtful. As one commentator has noted,

[t]rials are at their best when specific adjudicative facts are in dispute. Trials are seldom desirable either on legislative facts or on broad factual issues. That a plaintiff has a protected interest at stake does not mean that he is entitled to a trial, because an issue appropriate for trial may be absent.

K. Davis, Administrative Law of the Seventies § 7.00-11 at 276 (1976).

Finally, we consider the Government’s interest. The Government desires, of course, to act consistently with the child’s best interest. Its additional concern, however, is to move as efficiently as possible. Children in foster care are a state expense, while those in adoptive homes are generally not. Sometimes extreme haste is necessary in an emergency to place a child in foster care. The quicker a child can be placed in a permanent home, the better. The presence of additional procedural safeguards and appeals procedures would naturally siow the placement process down to the detriment of both child and state.

Given the nature of the interests at stake, and the inquiry involved, as well as the overwhelming need for flexibility in this situation and the complexity of the decision to be made, this Court holds that whatever process was due was rendered by the state agency in this case.

AFFIRMED.