Elwell v. Byers
2012 U.S. App. LEXIS 23400
| 10th Cir. | 2012Background
- Elwells fostered T.S. since infancy and pursued adoption; they were on the verge of finalizing adoption plan.
- SRS investigated an emotional-abuse report; the agency later designated it unsubstantiated and began removal planning for T.S.
- KDHE ultimately revoked the Elwells’ foster care license and removed T.S. without any advance notice to the family.
- State court found no safety concerns and that removal could have been avoided; litigation over placement dragged on for years.
- Elwells sued Kaufman and Byers under 42 U.S.C. § 1983, alleging procedural and substantive due process violations; district court denied qualified immunity on the procedural claim but granted it on the substantive claim.
- The majority reverses the district court on qualified immunity and holds the notice deprivation violated due process, but faces whether such right was clearly established at the time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a constitutionally protected liberty interest? | Elwells had a liberty interest arising from foster-to-adopt relationship, state law guarantees, and major emotional bonds. | State law only creates procedural rights; no substantive liberty interest existed. | Elwells possessed a liberty interest under the Due Process Clause. |
| Did removal without notice deprive due process? | Lack of notice violated fundamental due process protections for a liberty interest in family life. | No pre-deprivation hearing required in all cases; emergency or safety concerns could justify post-notice procedures. | Yes; removal without any advance notice violated due process. |
| Was the right clearly established at the time of removal? | A line of cases (e.g., Spielman) recognized protective interests in foster/preadoptive parents; failure to notice should be actionable. | No clearly established authority clearly forewarned that removal without notice violated the Constitution in these facts. | Not clearly established; qualified immunity applies to Kaufman and Byers. |
Key Cases Cited
- Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816 (Supreme Court 1977) (reaffirmed foster care context and due process concerns)
- Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir. 1989) (analyzed liberty interest for preadoptive parents in foster care)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (Supreme Court 2005) (recognizes procedural due process limitations in liberty interests)
- Santosky v. Kramer, 455 U.S. 745 (Supreme Court 1982) (due process balancing in parental rights and state actions)
- Thompson v. Department of Corrections, 490 U.S. 454 (Supreme Court 1989) (state-created liberty interests require careful consideration of procedures)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (Supreme Court 1950) (notice must be delivered at a reasonable time)
- Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir. 2008) (clearly established inquiry focuses on fair warning of constitutional rights)
- McLaughlin v. Pernsley, 693 F. Supp. 318 (E.D. Pa. 1988) (out-of-circuit district court decision cited on liberty interest)