Plaintiffs next argue that George and Elizabeth Whalen's associational rights derive from the right of their son Michael. They maintain that because Michael is the biological sibling of Elizabeth Waite, and they are the adoptive parents of Michael, any associational right Michael may have with respect to his biological sister can somehow be ascribed to his adoptive parents. The plaintiffs cite no authority for such a proposition and this Court finds none to support boot-strapping constitutional rights in this manner. Furthermore, adoption is a legally created relationship between the adoptee and the adopting parents and, as such, it creates no rights for the adopting parents as to the biological kin of the adoptee. See N.Y. Dom. Rel. Law § 117 (McKinney 1988). Thus, George and Elizabeth Whalen have failed to establish a valid First Amendment claim under § 1983 as a matter of law.
Procedural and Substantive Due Process
In order for the defendants to have violated the plaintiffs' procedural due process rights, the plaintiffs must have been deprived of some recognized liberty interest. Plaintiffs allege that they have a clearly established liberty interest in living with or adopting Elizabeth. In support of this assertion the plaintiffs cite to the Supreme Court decision Smith v. OFFER, 431 U.S. 816, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977). Smith, they argue, requires the application of a three part test to determine whether a liberty interest is present in a non-biological relationship. They further argue that an application of that test clearly establishes a liberty interest held by George and Elizabeth Whalen to live with or adopt Elizabeth. Plaintiffs maintain that they, as the adoptive parents of Elizabeth's older brother Michael, have a "well defined expectation of becoming the parents of Elizabeth." Plaintiffs argue that this expectation creates a far more permanent relationship than foster or pre-adoptive parentage.
In Smith, the Supreme Court recognized that a liberty interest does exist in maintaining family relationships. 431 U.S. at 842. Smith, however, suggested only that long term foster parents may have a liberty interest in preserving their relationships with their foster children. Id. at 844. According to Smith, The basis of this liberty interest is the length and strength of the bond between the foster parents and children.
George and Elizabeth Whalen's reliance on Smith to support the existence of a "liberty interest" on the facts of this case is misplaced. The three factors which the plaintiffs cite to establish their liberty interest, are actually three distinctions which differentiate foster families from biological families.
Id. at 845-847. Thus, these factors can not be used to extend a liberty interest to the plaintiffs, who have neither a biological nor a foster relationship with Elizabeth. To the extent that the plaintiffs argue that their relationship with Elizabeth is stronger than a foster relationship, this Court disagrees. The Whalens have none of the established emotional attachments or intimacy discussed in Smith that triggered the possible liberty interest held by foster parents. Id. at 844. Thus, the plaintiffs fail to establish a procedural due process "liberty interest" as a matter of law.
George and Elizabeth Whalen's assertion of a violation of their substantive due process right to live with Elizabeth is likewise invalid. Substantive due process places limits on a state's right to interfere with a person's most basic decisions about family and parenthood, which has been held to include such areas as the use of contraception, the termination of pregnancy, the raising of children, living with family, and preserving bodily integrity. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 849, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992); Griswold v. Connecticut, 381 U.S. 479, 485, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965); Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973); Loving v. Virginia, 388 U.S. 1, 12, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977); Meyer v. Nebraska, 262 U.S. 390, 399-404, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); and Washington v. Harper, 494 U.S. 210, 221-222, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990). As a general matter, the Supreme Court "has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decision making in this unchartered area are scarce and open ended." Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 812, 127 L. Ed. 2d 114 (1994) (citation omitted). There is no case law establishing the existence of a substantive due process right in the adoptive parents of one child to adopt or live with that child's biological sibling.
The Whalens have failed to identify the source of their alleged substantive due process right, citing only to Moore v. City of East Cleveland. Plaintiffs appear to argue that the Supreme Court's extension of substantive due process rights to non-nuclear family members, as suggested in Moore, can logically be extended to cover the plaintiffs' relationship with Elizabeth. In Moore the Court recognized that cousins, aunts and grandparents living together as a family are entitled to the same constitutional protection as traditional family members living together. 431 U.S. at 503-505. As stated before, however, there is no relationship, family-like or otherwise, between George and Elizabeth Whalen and Elizabeth Waite to which Moore can be extended. Plaintiffs George and Elizabeth Whalen have presented no authority to support the existence of this substantive due process right, and this Court declines to create a new right under the Constitution.
Right of Access to the Courts
Plaintiffs allege that by intention, recklessness or deliberate indifference, defendants violated New York State law in such a way as to deny the plaintiffs meaningful access to the courts. They allege that the defendants violated several New York adoption regulations which, if read together, imply a duty to inform the adoptive parents of one child of the subsequent foster placement of that child's biological sibling. Plaintiffs argue that by failing to inform them when Elizabeth was placed in temporary foster care in 1989, the defendants denied the Whalens the ability to sue for custody of Elizabeth or obtain administrative relief.
The constitutional right of access to courts is violated where government officials obstruct legitimate efforts to seek judicial redress. Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984). When government officials thwart vindication of a claim by violating basic principles that enable civil claimants to assert their rights effectively, an unconstitutional deprivation of a cause of action occurs. Barrett v. United States, 798 F.2d 565, 575 (2d Cir. 1986). The Constitution, therefore, protects claims from arbitrary interference by governmental officials. Id.
With respect to the New York adoption regulations which the plaintiffs allege the defendants violated, none create any duty to the Whalens which could give rise to a cause of action. For example, plaintiffs allege a violation of 18 NYCRR 421.2, which states:
Minor siblings or half-siblings who are freed for adoption must be placed together in a prospective adoptive family home unless the social services district or the voluntary authorized agency with guardianship and custody determines that such placement would be detrimental to the best interests of one or more of the siblings.