Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. CIV-L-75-27 -- Jesse E. Eschbach, Judge.
Before Fairchild, Chief Judge, Pell, Circuit Judge, and Foreman, Chief District Judge.*fn*
On this appeal we are asked to decide whether foster parents and the foster children placed in their care during a substantial period have a constitutionally protected liberty interest in their relationship so that due process must be fulfilled before a state welfare agency removes the child from the foster home.
After argument of this appeal in this court, the Supreme Court discussed this question, but found resolution unnecessary in the case before the Supreme Court. Smith v. Organization of Foster Families, 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977). That case arose from New York, and the Court held the New York procedures adequate to protect whatever liberty interests the foster parents and children might have.
More recently, in a case arising from Georgia, the Fifth Circuit "concluded that there is no liberty interest here of full-fledged constitutional magnitude." Drummond v. Fulton Cty. Dept. of Family, etc., 563 F.2d 1200 (5th Cir. 1977).
A majority of this panel has decided to follow the Fifth Circuit in Drummond, and therefore, we AFFIRM.
I. THE PLACEMENT OF JOHN JOE BOWLING WITH CHARLES AND PAULINE KYEES AND HIS SUBSEQUENT REMOVAL
The undisputed facts appear as follows: John Joe Bowling, the child with whom we are concerned, was born out of wedlock on November 28, 1972. His father is unknown. His mother, due to mental and physical problems, is unable to care for him. Though his maternal grandmother tried to care for the infant for a time, on May 18, 1973, John Joe became a ward of Tippecanoe County, Indiana. Between May 18, 1973 and July 13, 1973, John Joe was placed with two foster families. He twice required hospitalization during this time though the record does not indicate any reason other than the child cried constantly. On July 13th, defendants placed John Joe with a childless couple, Charles and Pauline Kyees, duly licensed foster parents living in Lafayette, Indiana.
John Joe was the first foster child the Kyees had cared for. Although the contract between the Kyees and the defendants is not a part of the record, it is not disputed that it was a typical contract for foster care, providing only payment of a per diem allowance to the Kyees in exchange for their temporary care of the child. It clearly did not create any expectation of a continuing relationship between the Kyees and John Joe. In addition, the record is clear that the Kyees were told, even before the natural mother had waived parental rights, that the placement would be temporary (probably less than a year) and that they would not be considered suitable as adoptive parents. While with the Kyees, the child improved considerably. At defendants' recommendation, the Kyees enrolled John Joe in a therapy program at Wabash Center for Physical Therapy. Five days a week, they took the child to the Center. In her February 14, 1974 psychological report on John Joe, Dr. Audrey Riker of the Wabash Center noted that the child's "cognitive abilities" were still somewhat below normal, but that he had developed a "strong and sound emotional attachment" to his foster parents. She suggested that "unless a suitable adoptive placement can be found, it would be best to leave him where he is rather than disrupt this vital aspect of overall development." The Kyees were likewise developing an emotional attachment to the child and began to express an interest in adopting him. The agency discouraged this interest.
John Joe's natural mother signed "Voluntary Termination of Parental Rights" and "Consent to Adoption" forms on March 1, 1974. The following week the Kyees were informed of this and of defendants' active search for an adoptive home for the child. The Kyees had continued to express interest in adopting John Joe and the defendants again told them that they would not consent to such an adoption.
On April 10, 1974, the Kyees filed with the Tippecanoe Circuit Court a petition to waive the requirement of defendants' approval of their adoption of John Joe Bowling. In a letter to the court, defendants explained that they opposed the adoption because of the Kyees' age. Charles Kyees was 66 and Pauline Kyees 50 at the time of their application. Defendants were seeking parents "who will likely be alive through John's adolescent and teenage years; parents who are physically and emotionally able to cope with the growing up years." Defendants further explained that the Kyees had more information about the child's origins and early circumstances than would normally be given to adoptive parents. For this reason, defendants hoped for an out-of-county adoptive placement for the child. Finally, defendants' letter stated some concern about Mrs. Kyees' appreciation of the need for John Joe to continue his therapy at the Wabash Center.
The court denied the Kyees' petition on December 19, 1974. It found that the Kyees had done "an excellent job as foster parents, devoting much time and special attention to the child . . . ." It found them "faithful in keeping appointments at Wabash Center and cooperating with the Center's staff in its evaluation testing and training of the child." Thus, it found itself confronted with "a classic case of outstanding foster parents who have become emotionally involved with the child, seeking to adopt contrary to the views and against the wishes and policies of the Department." The court, however, considered itself unable to waive the requirements of defendants' approval of the Kyees' adoption in light of the Kyees' failure to prove that defendants' policy of denying consent to adoption by older couples was arbitrary or motivated by any consideration other than the best interests of the child. The Kyees did not appeal this decision.
Apparently, in April, 1974, at the time the Kyees made their petition to the Tippecanoe Circuit Court, defendants had arranged to move John Joe to a fourth foster home for a few days and to place him in an out-of-county adoptive home late in April. The record is unclear as to why this did not occur. In any case, John Joe remained with the Kyees until August, 1975, more than two years after the initial placement.
Having been unsuccessful in their attempt to adopt John Joe, the Kyees began to pursue alternative ways of maintaining the relationship they had established with the child. Specifically, in May, 1975 their attorney met with Defendants Wilms and Abell to discuss the possibility of a local adoption that would allow the Kyees to maintain regular contact with the child as "foster grandparents." Wilms and Abell allegedly said that the decision was not theirs to make. Although none of the defendants ever gave the Kyees any reason to believe that a local adoption would be agreeable to the agency, and indeed continued to schedule out-of-town visits with the family that eventually adopted the child, the Kyees continued to ...