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March 19, 1992

GORDON JOHNSON, Former Director, Illinois Department of Children and Family Services; JESS McDONALD, Former Interim Director, Illinois Department of Children and Family Services; SUE SUTER, Director, Illinois Department of Children and Family Services; HEPHZIBAH CHILDREN'S ASSOCIATION, a Not-For-Profit Corporation; and LUTHERAN CHILD AND FAMILY SERVICES, a Not-For-Profit Corporation, Defendants.

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.



 Before the court are the motions to dismiss of defendants Sue Suter ("Suter"), Hephzibah Children's Center ("Hephzibah"), and Lutheran Child and Family Services ("Lutheran Child"). For reasons that follow, the motions are granted.


 The plaintiffs, Joseph and Marjorie Procopio (the "Procopios"), were foster parents to Ashley K. from June 1984, when Ashley was approximately two months old, until July 1989. *fn1" A juvenile court had removed Ashley from the custody of her unmarried natural parents, both heroin addicts, and placed the child with the Illinois Department of Children and Family Services ("DCFS"). DCFS, working with Lutheran Child, then placed Ashley with the Procopios. The Procopios were allegedly assured by DCFS officials at that time, and repeatedly over the next three years, that they would be allowed to permanently adopt Ashley.

 Ashley's natural parents filed a juvenile court petition on December 29, 1988 seeking to regain custody of Ashley. DCFS, despite contrary recommendations in several psychological reports on Ashley, urged the return of Ashley to her natural parents. Additionally, in April 1989, DCFS began working with Hephzibah on a plan for implementing the return. The following July, DCFS removed Ashley from the Procopios' home and placed the child with Hephzibah. The juvenile court, on August 29, 1989, returned custody of Ashley to her natural parents. The Illinois Appellate Court, however, on April 17, 1991, reversed the juvenile court and ordered a new hearing on custody of Ashley. *fn2"

 The Procopios initiated this federal litigation on August 29, 1991 by filing a three-count complaint, including one federal claim under 42 U.S.C. ยง 1983 alleging violation of their 14th Amendment due process rights, and supplemental state claims alleging fraudulent misrepresentation and intentional infliction of emotional distress.

 The Procopios recently advised this court that on October 8, 1991, a Cook County associate judge vacated DCFS's guardianship of Ashley and granted custody of the girl to her natural parents.


 On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The complaint must state either direct or inferential allegations concerning all material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Dev. Co., 758 F.2d 203, 207 (7th Cir. 1985). Moreover, dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transp. Servs. Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 The moving defendants all seek dismissal of the complaint on the ground that the Procopios failed to state a claim under the 14th Amendment because they have not alleged a liberty or property interest subject to due process protection.

 A procedural due process claim, as is raised here, requires evaluation of (1) whether the state has interfered with a liberty or property interest, and (2) "whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). The plaintiff must show "a legitimate claim of entitlement" to the asserted liberty or property interest. Id. Protected liberty interests arise only from the due process clause itself or state law. Id.; Pardo v. Hosier, 946 F.2d 1278, 1281 (7th Cir. 1991).

 In this case, if there is a basis for the Procopios' asserted liberty interest in their relationship with their former foster daughter, it must be found in Illinois law. See Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 846, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977) ("ascertain from state law the expectations and entitlements" of foster parents in determining the scope of their liberty interest). The Procopios argue that the length of time they had custody of Ashley and the alleged assurances by DCFS officials that the Procopios would be allowed to adopt Ashley permanently give rise to a constitutionally protected liberty interest. Nevertheless, they have not cited any Illinois statute or case law which directly supports their position.

 Foster child-parent relationships in Illinois are governed or affected by several statutes. The Illinois Juvenile Court Act, for example, provides that with regard to custody, parental rights or delinquency hearings under the Act, "any current or previously appointed foster parent . . . has the right to be heard by the court, but does not thereby become a party to the proceeding." Ill. Rev. Stat. ch. 37, P801-5(2) (1989); see also In Re M.W., 221 Ill. App. 3d 550, 552, 582 N.E.2d 268, 269-70, 164 Ill. Dec. 60 (3d Dist. 1991) (foster parents have no right to intervene). Similarly, the Adoption Act provides that state-licensed foster parents who have cared for a child continuously for one year or more "may apply to the child's guardian with the power to consent to adoption, for such guardian's consent." Ill. Rev. Stat. ch. 40, P1519.1(a) (1989). That Act further provides that the guardian "shall give preference and first consideration" to a foster parent's application for adoption, subject to a variety of factors. Id., P1519.1(b). The "final determination" regarding an adoption, however, ...

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