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Article Excerpt
I. INTRODUCTION
Courts and commentators suggest that because adoption is a creature of statute, there can neither be a right to adopt nor a right to be adopted. They further argue that the case law supports their position, claiming that the United States Supreme Court in Smith v. Organization of Foster Families For Equality and Reform (OFFER) (1) expressly rejected the right to adopt or be adopted. Yet, the relevant constitutional jurisprudence is much more nuanced than these courts and commentators would have one believe. The focus of discussion should not be on whether there is a right to adopt or be adopted per se, but on whether there is a constitutionally protected liberty interest either in being adopted or in the state's not erecting arbitrary and unduly burdensome barriers to adoption. The relevant case law on this matter suggests that there is a constitutionally protected liberty interest in this area, both because of a related jurisprudence which establishes that children have some protected rights in the placement context and because OFFER is much more supportive of various parties' interests in adoption than might first be thought.
Part II of this article discusses the rights of foster care children with respect to the kinds of care that they receive, arguing that the jurisprudence in this area suggests that the interests of those parties who would adopt or be adopted may well have constitutional weight. Part III discusses OFFER and its implications for state limitations on adoption. The article concludes that the interests implicated in adoption are or should be constitutionally protected, at least where there are no competing interests of a biological parent at stake.
II. SECTION 1983 ACTIONS IN THE FOSTER CARE CONTEXT
Courts in many of the circuits have recognized that foster children have limited rights against the state with respect to the care that they receive. While the developing jurisprudence in this area does not establish that there is or should be a constitutionally recognized liberty interest in adopting or being adopted, that jurisprudence is nonetheless suggestive that some of the interests in the adoption context must be accorded constitutional weight. Further, this developing jurisprudence utterly undermines the contention that there can be no constitutionally protected interests in adoption due to its being a creature of statute. Precisely because foster care is a creature of statute but nonetheless implicates constitutional interests, the constitutional analysis involving adoption rights must be much more nuanced than many courts and commentators seem to appreciate.
A. Rights to Adequate Care
Courts and commentators sometimes suggest that because adoption is a creature of the state, (2) there can be no adoption rights. Yet, the same might be said of foster care, (3) and the law nonetheless recognizes that children have rights in the foster care context. (4) While those rights are not equivalent to a right to be adopted, they are nonetheless helpful to consider when examining the kinds of interest the Constitution does or should take account of in the placement context. (5)
The right of foster children to receive adequate care has been recognized in various jurisdictions. As the Washington Supreme Court explains in Braam ex rel. Braam v. State,
Foster children, because of circumstances usually far beyond their control, have been removed from their parents by the State for the child's own best interest ... Foster children need both care and protection. The State owes these children more than benign indifference and must affirmatively take reasonable steps to provide for their care and safety. (6)
The right described in Braam is not a right to a permanent placement in the perfect home. (7) Much of the foster care rights jurisprudence focuses on preventing children from being subjected to very dangerous conditions. Thus, the Braam court explains that "at its core, foster children have a substantive due process right to be free from unreasonable risk of harm, including a risk flowing from the lack of basic services, and a right to reasonable safety." (8) However, this right to reasonable safety is not merely a right not to be placed in very dangerous settings--it also includes the right to have basic needs met. Thus, when explaining the "right to reasonable safety," (9) the Braam court explains that "the State, as custodian and caretaker of foster children must provide conditions free of unreasonable risk of danger, harm, or pain, and must include adequate services to meet the basic needs of the child."(10)
Many of the cases involving this substantive due process right have involved foster children who have suffered physical or sexual abuse as a result of being placed in a dangerous setting. For example, in one case, a seven-year-old was allegedly subjected to repeated sexual abuse by an intern hired by the Department of Child and Family Services, notwithstanding the intern's history of mental illness and drug problems. (11) In another, two children placed in a foster home were subjected to repeated sexual abuse by men living in the home. (12) In yet another, three children were allegedly subjected to abuse by the teenage son of the operators of the foster home. (13) Other cases involved no sexual abuse but instead severe physical abuse leading to grave injury or death. (14) Sometimes the charges involved both physical and sexual abuse,is In short, many of the cases involved foster children who had been subjected to egregious treatment, although in these cases the issue was not whether the conduct against the children was wrong or even criminal but, instead, whether the relevant state actors had been sufficiently culpable that they should be subject to a [section] 1983 action. (16)
B. The Standard for Determining Whether the State Has Met Its Obligations
In the cases described above, the plaintiffs claimed the state had deprived them of protected rights without due process of law. As the Tenth Circuit explains, "Section 1983 provides a private cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.'" (17)
When these [section] 1983 actions are brought, the claim is not merely, for example, that a private party has harmed a foster child, even severely. As the Third Circuit explains, "the Due Process Clause does not impose an affirmative duty upon the state to protect its citizens." (18) Rather, the claim is that the state played an important role in bringing about the abuse of these children, for example, because the state removed those children from their homes and placed them in the setting where they were subjected to abuse.
When the state has children in its custody, the state has taken on a special obligation with respect to their care, which the state fails to meet if it puts children in unreasonably dangerous settings. (19) "[W]hen the state enters into a special relationship with a particular citizen, it may be held liable for failing to protect him or her from the private actions of third parties. This liability attaches under [section] 1983 when the state fails, under sufficiently culpable circumstances, to protect the health and safety of the citizen to whom it owes an affirmative duty." (20)
Currently, there are two competing standards for determining whether a state actor is liable under [section] 1983 for failing to meet its obligations to the foster children in its care. The Braam court offered one, concluding that the "proper inquiry is whether the State's conduct falls substantially short of the exercise of professional judgment, standards, or practices." (21) The Wisconsin Supreme Court reached a similar conclusion. (22) However some courts have adopted a deliberate indifference or a shock-the-conscience standard. The Eighth Circuit explains,
In the context of this custodial relationship, a substantive due process violation will be found to have occurred only if the official conduct or inaction is so egregious or outrageous that it is conscience-shocking. When deliberation is practical, the officials' conduct will not be found to be conscience-shocking unless the officials acted with deliberate indifference. Deliberate indifference will be found only if the officials were aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and the officials actually drew that inference. (23)
Other courts have equated the shock-the-conscience and deliberate indifference standards, at least in the foster care context. (24)
These two different standards stem from different United States Supreme Court cases-on the one hand Estelle v. Gamble (25) and County of Sacramento v. Lewis (26) (Estelle-Lewis standard) and on the other Youngberg v. Romeo (27) (Youngberg standard). (28) The former standard seems more demanding than the latter, although some courts have implied that in the context of foster care it will not matter which standard is chosen. (29)
In Estelle, a prisoner, J. W. Gamble, brought a [section] 1983 action contending that he had been subjected to "cruel and unusual punishment in violation of the Eighth Amendment" (30) by virtue of the poor medical treatment that he had received while an inmate of the Texas Department of Corrections. (31) The Estelle Court explained that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment," (32) and that "deliberate indifference to a prisoner's serious illness or injury states a cause of action under [section] 1983." (33) The Court cautioned, however, that the decision did not stand for the proposition that "every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. (34) Neither accident (35) nor mere negligence (36) would suffice to establish the relevant level of culpability.
In Lewis, the issue was "whether a police officer violates the Fourteenth Amendment's guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender." (37) The Court held that "in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation." (38) The Court noted that its shock-the-conscience standard was fact-specific, because "[d]eliberate indifference that shocks in one environment may not be so patently egregious in another." (39) For example, as the term implies, "the standard is sensibly employed only when actual deliberation is practical." (40) The Court illustrated this by pointing out that "in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare." (41)
As the Lewis Court noted, the case before it did not involve a situation in which the officer had ample time for reflection. The officer had to make a split-second decision, and "when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates 'the large concerns of the governors and the governed.'" (42) The case involving a high-speed chase is to be contrasted with the prison case, since "liability for deliberate indifference of inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations." (43) Thus, where officials with individuals in their care are afforded sufficient time for investigation and reflection, they may well be held accountable for their deliberate indifference with respect to the welfare of those in their charge.
The deliberate indifference standard discussed in Estelle and Lewis is to be contrasted with the professionalism standard suggested in Youngberg. In Youngberg, an inmate involuntarily committed to a state institution for the mentally handicapped claimed that he had "a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these...
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