December 01, 2012

Foster Parents Had Constitutional Right to Due Process Before Removal of Child

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Elwell v. Byers, 2012 WL 5507251 (10th Cir.).

Foster parents had a constitutional right to due process before child was removed, where they had taken substantial steps toward adopting him and he had been in their care most of his life. However, since case law had not established clearly that foster parents had constitutional rights, state officials have immunity in foster parents’ lawsuit.

When the Elwells, state licensed foster parents, were in the process of adopting a child, there was an emotional abuse complaint regarding another foster child in their home. The complaint alleged they left the other child in soiled clothing for a short period. This complaint was later unsubstantiated. Nonetheless, the agency decided to end the foster parents’ license and the children were removed.

The Elwells filed a complaint in state court. The agency admitted it had failed to give the required notice when a foster parent has had a child in their home for over six months. Although the state court found the removal was improper without notice, it also found the child had been in his new home for too long and was too bonded. It therefore denied the Elwells’s request for his return.

The Elwells brought a § 1983 suit against several officials involved in the removal. The Federal District Court for the District of Kansas denied the defendant agency staff’s motion for summary judgment, holding that qualified immunity did not shield them from liability.

The defendants appealed to the Tenth Circuit Court of Appeals.
The Tenth Circuit noted that to overcome a defense of qualified immunity, the plaintiffs had to show a clearly established constitutional right and that the defendants violated that right. The Elwells could have a constitutional right conferred by statute or under the Due Process Clause.

The statute challenged in the state court required notice and provided the foster parents the option to have a hearing. The statute failed to create a constitutional right because the right was merely procedural; it did not assume a particular outcome.

Under the Due Process Clause, courts have frequently noted the importance of biological family connections. This liberty to make choices about one’s family is often based on emotional bonds, which courts have found may be present in nonbiological relationships. While every foster parenting relationship would not give rise to a right to family integrity, here the foster parents had taken substantial steps toward adopting the child and he had been in their home most of his life. Thus, they had progressed well toward being adoptive parents, who are afforded the same rights as birth parents.

The court noted that some process was constitutionally required, but it was not necessary to determine how much since the state provided no process by failing to give notice.

Although the foster parents’ rights were violated, these rights were not clearly established at the time of the agency’s actions. Thus, the district court improperly found a clearly established right was violated so that defendants should have known they were violating their rights.

The case was reversed in favor of the defendants.