Smith v. OFFER (Organization of Foster Families for Equality and Reform), 1977

It is interesting to contrast this opinion, which limited the constitutional protections available to foster parents, with New York Coalition for Families, “Beyond the Best Interests of the Child Is Being Used to Legitimize the Destruction of Poor Black and Hispanic Families,” mid-1970s. In that document, an advocacy organization argued that birth parents were disadvantaged in comparison with foster parents and charged that foster care was a system that destroyed poor and minority families while claiming to help them.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellees, individual foster parents and an organization of foster parents, brought this civil rights class action. . .in the United States District Court for the Southern District of New York, 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 against New York State and New York City officials, alleging that the procedures governing the removal of foster children from foster homes. . .violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. . . .

A divided three-judge District Court concluded that “the pre-removal procedures presently employed by the State are constitutionally defective,” holding that “before a foster child can be peremptorily transferred from the foster home in which he has been living, be it to another foster home or to the natural parents who initially placed him in foster care, he is entitled to a hearing at which all concerned parties may present any relevant information to the administrative decisionmaker charged with determining the future placement of the child.” . . . . We reverse.

The expressed central policy of the New York 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.” But the State has opted for foster care as one response to those situations where the natural parents are unable to provide the “positive, nurturing family relationships” and “normal family life in a permanent home” that offer “the best opportunity for children to develop and thrive.”

Foster care has been defined as “[a] child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible.” Thus, the distinctive features of foster care are, first, “that it is care in a family, it is noninstitutional substitute care,” and, second, “that it is for a planned period—either temporary or extended. This is unlike adoptive placement, which implies a permanent substitution of one home for another.”

Under the New York scheme children may be placed in foster care either by voluntary placement or by court order. Most foster-care placements are voluntary. . . . Voluntary placement requires the signing of a written agreement by the natural parent or guardian, transferring the care and custody of the child to an authorized child welfare agency. . . . The agency may maintain the child in an institutional setting, but more commonly acts under its authority to “place out and board out” children in foster homes. Foster parents, who are licensed by the State or an authorized foster-care agency, provide care under a contractual arrangement with the agency, and are compensated for their services. The typical contract expressly reserves the right of the agency to remove the child on request. Conversely, the foster parent may cancel the agreement at will. . . .

The appellees’ basic contention is that when a child has lived in a foster home for a year or more, a psychological tie is created between the child and the foster parents which constitutes the foster family the true “psychological family.” of the child. That family, they argue, has a “liberty interest” in its survival as a family protected by the Fourteenth Amendment. . . .

It is, of course, true that “freedom of personal choice in matters of. . .family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” There does exist a “private realm of family life which the state cannot enter,” that has been afforded both substantive and procedural protection. But is the relation of foster parent to foster child sufficiently akin to the concept of “family” recognized in our precedents to merit similar protection? Although considerable difficulty has attended the task of defining “family” for purposes of the Due Process Clause, we are not without guides to some of the elements that define the concept of “family” and contribute to its place in our society.

First, the usual understanding of “family” implies biological relationships, and most decisions treating the relation between parent and child have stressed this element. . . . A biological relationship is not present in the case of the usual foster family. But biological relationships are not exclusive determination of the existence of a family. . . .

No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship. At least where a child has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents, it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family. For this reason, we cannot dismiss the foster family as a mere collection of unrelated individuals.

But there are also important distinctions between the foster family and the natural family. First, unlike the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with a foster family which has its source in state law and contractual arrangements. . . . [W]hatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset. . . . In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional “liberty” in the foster family.

It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they have freely entered, even in the absence of biological connection or state-law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another’s constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right—an interest the foster parent has recognized by contract from the outset. Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents. . . .

We are persuaded that, even on the assumption that appellees have a protected “liberty interest,” the District Court erred in holding that the preremoval procedures presently employed by the State are constitutionally defective. . . . Since we hold that the procedures provided by New York State in §392 and by New York City’s SSC [Social Services for Children] Procedure No. 5 are adequate to protect whatever liberty interests appellees may have, the judgment of the District Court is Reversed.


Source: 431 U.S. 816 (1977).

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