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Rivera v. Marcus

decided: December 23, 1982.


Appeal from the decision of the United States District Court for the District of Connecticut, Zampano, J., holding that the due process rights of the appellee were violated when the state removed her half-brother and sister from the family home. The district court found that the appellee, who acted as both custodial half-sister and foster parent to the two children living in her home, should have received substantial due process protection when the state decided to remove these children. Affirmed. Concurring opinion by Judge Kaufman.

Kaufman, Meskill and Fairchild,*fn* Circuit Judges. Kaufman, Circuit Judge, concurring.

Author: Meskill

MESKILL, Circuit Judge:

We are asked in this appeal to determine whether the procedures used by the State of Connecticut to remove children from foster homes comport with due process. The district court found that the appellee, Mrs. Dorothy Rivera, who was both custodial relative and foster parent to the two children living in her home, should have been provided with greater due process protections when the state removed these children. We affirm.

I. Background

Most state administrators and jurists are reluctant to order a child removed from the family home. Court decisions reflect this general sentiment, which is premised on our strong national tradition supporting the integrity and independence of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); see also Wisconsin v. Yoder, 406 U.S. 205, 231-32, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Meyer v. Nebraska, 262 U.S. 390, 399-400, 67 L. Ed. 1042, 43 S. Ct. 625 (1923). Unfortunately in some situations there are instances of serious parental neglect or physical abuse requiring the state to intervene to protect the best interests of the child.

The decision to remove a sibling from the family home is always serious and the resulting disruptions can often be traumatic for both parent and child. The courts have recognized the grave nature of this decision and have consistently ordered that natural parents be afforded due process protection to ensure that a child is not removed without good cause. See Stanley v. Illinois, 405 U.S. at 651. See generally Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599, 50 U.S.L.W. 4333, 4335 (1982); Lassiter v. Department of Social Services, 452 U.S. 18, 24-32, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981). We are less certain whether these procedural protections should extend to foster parents. Although foster parents often provide the same care, love and support expected of natural or adoptive parents, the foster relationship is frequently of shorter duration and is carefully circumscribed by a contract which typically authorizes the state to remove a child from the foster home at any time.

This appeal presents claims that do not fit neatly into the bodies of law governing the rights of either foster or natural parents. Indeed, the parental status of the appellee Dorothy Rivera can be characterized most accurately as hybrid: she is the adult half-sister of Esther Jean Ross and Edwin Ross and was principally responsible for the care and upbringing of the Ross children until the State of Connecticut interceded in 1974. From this perspective, she more closely resembles a natural parent. However, Dorothy Rivera was also a foster parent to the Ross children by virtue of a contract she signed with the State of Connecticut in 1972. The issue presented on appeal is whether a custodial half-sister who also happens to be a foster parent should be treated for purposes of procedural due process as a natural parent or a foster parent. We begin our analysis by reviewing the evolution of the kindred relationship between Mrs. Rivera and the two Ross children.

A. Family Relationship

In 1968, Betty Jean Ross and her infant daughter Esther Jean moved from Virginia to live with Mrs. Rivera in Hartford. In 1970, Betty Jean gave birth to another child, Edwin Ross. Mrs. Ross and her two children continued to live with Mrs. Rivera throughout this period. Mrs. Rivera is related biologically to the Ross children because they share the same father. She is, however, much older than her half-brother and sister.

Betty Jean Ross experienced psychological problems rendering her unable to care fully for the needs of her children well before she moved into the Rivera home. Mrs. Rivera stepped into this parental void almost from the moment the Ross children entered her home. The record suggests that she performed her duties as "surrogate mother" capably and with affection. The record also indicates that Mrs. Ross specifically asked Dorothy Rivera to care for her children and was amenable to the delegation of responsibilities in this extended family.

In 1972, Betty Jean Ross was committed to an institution due to her deteriorating mental condition. The Juvenile Court of the State of Connecticut assumed jurisdiction and ordered legal custody of the Ross children transferred to the State Welfare Department. Mrs. Rivera was not notified of the pendency of this Juvenile Court proceeding and was not present when the state assumed legal responsibility for the Ross children.

Representatives of the Connecticut Welfare Department subsequently asked Mrs. Rivera whether she would be interested in serving as a foster parent for the children. Mrs. Rivera agreed to this arrangement and the foster contract was signed on January 14, 1974. Under its terms, Dorothy Rivera agreed to provide familial care and services in exchange for monthly compensation from the state.*fn1 The Welfare Department expressly reserved in the agreement the right to remove the children from the Rivera foster home at any time. See J. App. at 52-53.*fn2

On November 14, 1974, the Connecticut Welfare Department notified Mrs. Rivera that the state had decided to exercise its right to remove the Ross children. At this point, Esther Jean and Edwin Ross had been living continuously with Mrs. Rivera for approximately six years.*fn3 Before removing the children, the State Welfare Department informed Mrs. Rivera that she was entitled to an "Administrative Case Review" (ACR) if she wished to contest the decision of the state agency. Mrs. Rivera indicated that she did wish to challenge the removal decision and asked that her attorney be present. This request was denied pursuant to the regulations adopted by the Commissioner of the State Welfare Department.*fn4 See J. App. at 48.

The ACR hearing was held on December 16, 1974. The three person panel decided without explanation that the Ross children should be removed from the Rivera home. Two days later the children were removed and were subsequently placed in another foster home where they presently reside.*fn5 Mrs. Rivera has neither been permitted to communicate with her half-brother and sister, nor been informed of the location or identity of the new foster parents.

B. Administrative Case Review Procedures

To decide this appeal, which focuses on the procedures used by the State of Connecticut to determine when a child should be removed from a foster home, it is necessary to review carefully the general policies and specific administrative regulations governing this process.

In 1972, the Connecticut Welfare Commissioner developed and implemented an "Administrative Case Review Demonstration Project." See J. App. at 46. The purpose of this project, as explained in the preface to the regulations, was to assure that those children under the supervision of the Commissioner of Welfare are not removed from an approved foster home unless it is clearly in the best interests of those children." Id. Consistent with this policy, the ACR regulations provide a detailed, albeit informal, set of procedures ostensibly designed to encourage reasoned decisionmaking.

ACR regulations provide that any foster parent can contest the decision of the Welfare Department to remove a foster child if that foster parent believes removal is not in the child's best interest. At the administrative hearing, the Welfare Department is represented both by the social worker responsible for the foster child and either a department supervisor or program supervisor. Id. The hearing panel is comprised of three individuals: a district office social worker; a trained social worker from a private casework agency; and a representative from the Welfare Department's "Central Office" who possesses a Master of Social Work degree and who has experience in the child welfare field. The Connecticut Child Advocacy Center represents the interests of the foster child during this proceeding.

The rights of the foster parent during the administrative proceeding are carefully circumscribed by state regulation. The foster parent is neither permitted to bring legal counsel to the hearing nor to confront and cross-examine any adverse witnesses. There is no guarantee of the right to be heard by an impartial tribunal. Moreover, the decision of the three person panel is not appealable, although it may be overruled by the unilateral decision of the Commissioner. See id. at 47. ACR regulations do not require that the panel's decision be reported in writing or otherwise explained to the foster parent.*fn6

C. Federal Court Action

Mrs. Rivera commenced a civil rights action under 42 U.S.C. § 1983 (1976) after receiving the hearing panel's decision. She charged that the procedures used by the State of Connecticut in foster care termination hearings violated her due process rights under the Fourteenth Amendment to the United States Constitution. A three judge panel was convened to consider this constitutional challenge to state procedures. 28 U.S.C. § 2281 (repealed 1976), § 2284 (1976). See King v. Smith, 392 U.S. 309, 312 n.3, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968). The panel initially abstained from deciding this issue, citing the possibility that the plaintiff may not have exhausted her state court remedies under the Connecticut Uniform Administrative Procedure Act, Conn. Gen. Stat. Ann. § 4-166 et seq. (West 1982). The panel retained jurisdiction, but directed plaintiff to file suit in the appropriate state court to resolve the exhaustion issue. Rivera v. Maloney, 410 F. Supp. 106, 110-11 (D. Conn. 1976). The parties agree that subsequent rulings by the Connecticut state courts in similar cases effectively foreclosed the plaintiff's avenue of appeal through the state system. See Menard v. Maloney, No. 120472 (Court of Common Pleas, Fairfield County at Bridgeport, May 4, 1978).

When Mrs. Rivera returned to the federal forum, she decided to limit her request to declaratory relief. In light of this procedural amendment, the three judge panel was dissolved and the case was assigned to Judge Zampano. See 28 U.S.C. § 2281 (repealed 1976) (three judge panel necessary where petitioner seeks injunctive relief restraining the enforcement, operation or execution of a state statute on grounds of unconstitutionality).

D. District Court Decision

Mrs. Rivera requested a broad legal ruling when presenting her claims to Judge Zampano. She asked the court to find that long term foster parents provide the same care and familial stability to a foster child that natural parents provide their children.*fn7 Mrs. Rivera further petitioned the court to rule that, in light of important similarities between long term foster parents and natural parents, foster parents should be guaranteed the same procedural due process protections as natural parents.

Judge Zampano considered these claims and intimated that there may be some instances where long term foster parents should be granted due process protections:

The plaintiff's arguments have considerable force and, in this Court's view, there would appear to be instances in which a liberty interest should be recognized where long-term family relationships evolve out of foster home placements. It seems clear that, as with a biological parent and child, strong, loving, emotional and psychological ties can develop among members of a long-term foster family. Any arbitrary state interference with those ties surely can result in harsh and lasting consequences to the foster child and to the foster family members. In these special circumstances, it would seem that a preremoval hearing which comports with constitutional standards may be required.

Rivera v. Marcus, 533 F. Supp. 203 (2d Cir. Conn. 1982) (order denying plaintiff's motion to dismiss, motion for class certification, and motion for production of documents), reprinted in J. App. at 104. The judge conceded, however, that his constitutional observations were perhaps tenuous in light of the Supreme Court's decision in Smith v. Organization of the Foster Families for Equality and Reform, 431 U.S. 816, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977) (Smith v. OFFER), and three recent appellate decisions where the courts ruled that foster parents do not possess a constitutionally-protected liberty interest in the maintenance of the foster family.*fn8

Judge Zampano noted, however, that Mrs. Rivera's case could be distinguished from the prevailing foster removal decisions. The court explained that unlike the typical foster relationship, Mrs. Rivera was biologically related as a half-sister to Esther Jean and Edwin. Moreover, the familial relationship between the plaintiff and the Ross children predated the foster care agreement. Hence, this "extended family" was not created by the state through the foster contract but rather was natural in origin. Finally, Judge Zampano explained that the potential for conflict between the natural and foster parents, typically a serious problem, was not present in this case because the likelihood that the natural parents of the Ross children would petition for custody was remote.*fn9 After reviewing these unique factors, the court ruled that Dorothy Rivera indeed possessed a liberty interest in the maintenance of her familial relationship with the Ross children.

Judge Zampano then examined the procedures used by the State of Connecticut in foster removal cases to determine if Mrs. Rivera's due process rights were adequately protected. The judge concluded that the state's procedures were constitutionally infirm, and ordered ...

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