Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 78-700-C -- James E. Noland, Judge .
Before Wood and Posner, Circuit Judges, and Will, Senior District Judge.*fn*
This is a suit under 42 U.S.C. § 1983 for injunctive relief and damages against several welfare and judicial officers (including a judge) in Putnam County, Indiana. The plaintiffs claim that their rights under the due process clause of the Fourteenth Amendment were violated by these officers in connection with proceedings that led to the plaintiffs' grandchildren (as we shall call them without meaning thereby to prejudge their status, which is contested) being removed from the plaintiffs' homes and adopted by strangers. The district court granted summary judgment for the defendants.
The plaintiffs are Amy Ellis, her sister Zella Frazier, and Zella's husband Cyril Frazier. Mrs. Frazier is the natural mother, and Amy Ellis the aunt, of Larry Ellis. In 1952 Mrs. Ellis adopted Larry with the consent of Mrs. Frazier. The adoption extinguished Mrs. Frazier's parental rights and vested them in her sister. Mr. Frazier is not Larry's father or otherwise related to him. He married Zella long after she had given up Larry for adoption.
Larry grew up and got married. Between 1969 and 1974 four children were born to the marriage. Larry and his wife were unsatisfactory parents, however, and the children lived for long stretches of time with Mrs. Ellis and Mrs. Frazier. In 1975 Mrs. Ellis complained to the defendants that Larry and his wife were mistreating the children. Her complaint led to criminal charges being lodged against Larry and his wife for cruelty and neglect. An order was entered removing the children from their parents' custody and placing them in a foster home, but the parents later regained custody, and were living with the children in Mrs. Ellis' home when, in July 1977, the mother decamped. Larry thereupon told the defendants that he wanted two of the children to remain with Mrs. Ellis and the other two to live with Mrs. Frazier. Larry took the two children to Mrs. Frazier's house and then disappeared.
The facts narrated up to this point are undisputed, but now the plaintiffs' and the defendants' versions begin to diverge. Since the complaint was dismissed on summary judgment, we must accept the plaintiffs' version of the facts to the extent that they are supported by the affidavits submitted to the district court.
The plaintiffs say that the defendants initially acquiesced in Larry's proposal to place the children in the homes of Mrs. Ellis and Mrs. Frazier, and that the plaintiffs thereby acquired legal custody of the children. One month later the defendant welfare officers ordered the plaintiffs, on two days' notice and without any explanation, to surrender the children to them. They placed the children in a totally unsuitable-in fact, notorious-group foster home where the female children were subjected to sexual abuse. When the plaintiffs complained, the welfare officers took the children out of the group home and placed them with foster parents but refused to tell the plaintiffs who the foster parents were or where they lived. The children were heartbroken at the separation from their grandparents and would have preferred to live with them.
The plaintiffs eventually retained a lawyer, who in May of the following year inquired of the defendant welfare officers about the children. The welfare officers, fearing that the lawyer would begin proceedings for the adoption of the children by Mrs. Ellis and Mrs. Frazier, filed in June a petition with the defendant judge to terminate the parental rights of Larry Ellis and his wife. Because their whereabouts were unknown, notice of the proceeding was by publication in the local newspaper. No effort was made to notify the plaintiffs specifically, but their lawyer knew about the proceeding. A hearing was held on June 25, 1978, and the judge ordered the parental rights of Larry and his wife terminated. Neither the plaintiffs' lawyer nor any of the plaintiffs was at the hearing.
The termination cleared the way for the children to be adopted, and the plaintiffs set about trying to adopt them. But their lawyer was given the runaround by the defendant court officers, who offered niggling and specious objections to the formal adequacy of the petition for adoption. As a result she was forced to file a second, and on August 24 a third, petition. A few days later the defendants informed her that the children had already been adopted by others. The adoptions (each child was adopted by a different couple) had taken place after the plaintiffs' lawyer filed the first petition, and neither she nor the plaintiffs had actual or constructive notice of the adoption proceedings. The adoptions robbed the plaintiffs not only of their hopes of adopting the children themselves but also, it seemed, of any right ever to see them again, for the defendants told the plaintiffs that it would be up to the adoptive parents to decide whether to permit the plaintiffs to visit with the children.
This suit was brought three months after the plaintiffs discovered the adoptions, and originally sought to nullify them; but after the suit had been pending for two years the plaintiffs decided that it would do more harm than good to the children to separate them from their new parents. All that the plaintiffs are now seeking in this action is a decree granting them visitation rights and damages for the deprivation of the custody and companionship of the children that they would have enjoyed but for the actions of the defendants. The plaintiffs have not been permitted to visit the children since they were removed from the group home.
We have no doubt that if welfare caseworkers, acting so precipitately as to prevent any recourse to the protective legal machinery of the state, barged into a couple's home, seized their children, sequestered them in a secret place, and put them up for adoption without notifying the parents, they would be guilty of violating 42 U.S.C. § 1983, no matter how regular the adoption proceeding on its face. We do not think any exotic constitutional doctrine-not even the ubiquitous oxymoron "substantive due process"-would be necessary in order to reach that result. It is plain to us that the "liberty" protected by the due process clause of the Fourteenth Amendment includes the right to the custody of one's minor children and that it would be a deprivation of that liberty without due process of law for persons acting under color of state law permanently to separate the children from their parents without notice and hearing. We have to decide how close this case is to that one.
The plaintiffs are of course not the parents of Larry Ellis' children; we are not sure quite what to call them. Cyril Frazier's relationship to the children is particularly tenuous. Having married their grandmother after she had given up Larry for adoption, Cyril is neither a natural nor an adoptive grandfather of Larry's children nor even, if there is such a thing, a "stepgrandfather." Mrs. Frazier is the children's natural grandmother but she voluntarily relinquished any prospective legal rights in Larry's children when she put him up for adoption. The interest of a natural grandmother in grandchildren born long after their parent was adopted away seems too tenuous to be part of the liberty protected by the due process clause.
Mrs. Ellis' claim to have a constitutionally protected liberty interest is the strongest, but we are not sure that even it should be accepted. There is first the question whether adoptive and natural grandparents should be equated. Cases such as Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S. Ct. 1208, 1215-1216, 31 L. Ed. 2d 551 (1972), where the Supreme Court held that a father has a liberty interest in the custody of his illegitimate child, point to a biological rather than jural concept of the family, while Smith v. Organization of Foster Families, 431 U.S. 816, 843-44 n.49, 97 S. Ct. 2094, 2109, 53 L. Ed. 2d 14 (1977), en route to holding that foster parents have at least an arguable liberty interest, contains language that points the other way. In the hypothetical case with which we began, it would probably make no difference whether the parents were natural or adoptive. Adoptive parents have all the legal rights, and generally the same emotional stake, in their children as natural parents. We are less sure it should make no difference in a case involving grandparents.
Passing this objection to Mrs. Ellis' claim, we reach the more fundamental question whether even a natural grandparent's interest in the society of her grandchildren, though an interest rooted in powerful emotions, is a liberty interest under the due process clause. If the grandchildren are in their parents' custody, the answer probably is no. In such a case the grandparents could not maintain an action in tort for the injury or death of any of the grandchildren under Indiana law, see Ind.Code § 34-1-1-8, or so far as we know that of any other state, see, e.g., Solomon ...