M.S. v. People
303 P.3d 102
Colo.2013Background
- A.C. was born with cocaine in his system and placed in foster care by the Department of Human Services immediately after hospital discharge.
- A.C. stayed in the foster home of M.S. and S.S., who were later identified as prospective adoptive parents in a permanency plan for adoption by a non-relative.
- A therapist reported concerns about the foster mother's mental health, prompting the Department to remove A.C. from the home without notice to the foster parents or GAL.
- A contested placement hearing was held; a psychologist expressed significant concerns about the foster mother's mental health, and the court decided not to return A.C. to the foster parents for adoption.
- The court of appeals held the foster parents lacked a constitutionally protected liberty interest and thus that due process protections did not apply; this court granted certiorari to resolve that issue.
- The court ultimately held that Colorado law does not create a liberty interest for preadoptive foster parents under these circumstances, and the foster parents have no constitutional right to continued relationship or pre-removal process; the case is remanded for further proceedings consistent with the court of appeals’ opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Colorado statutes create a liberty interest for preadoptive foster parents? | Foster parents argue they have a prospective liberty interest. | Department argues no substantive right is guaranteed by the statutes. | No; state law creates only procedural rights, not a liberty interest. |
| Does the U.S. Constitution protect a liberty interest of preadoptive foster parents in their relationship with a child? | Foster parents rely on a constitutional liberty interest in family life. | US Supreme Court has not recognized such a liberty interest for preadoptive foster parents. | No; such a liberty interest is not recognized for preadoptive foster parents. |
| Was A.C.'s removal without pre-removal notice a due process violation?</br>(dependent on the prior issue of liberty interest) | Removal without notice violated procedural due process. | Procedural protections exist but require a protected liberty interest to trigger. | Not reached as no constitutionally protected liberty interest was found. |
| Should the case be dismissed as moot? | N/A | N/A | Concurring opinion would dismiss as moot; majority result affirmed and remanded. |
Key Cases Cited
- Bd. of Regents v. Roth, 408 U.S. 564 (1972) (due process requires a protected interest to invoke procedures)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due process balancing framework for notice/hearing)
- Elwell v. Byers, 699 F.3d 1208 (10th Cir. 2012) (state law may create liberty interest if it substantively limits discretion)
- Elwell v. Byers, 699 F.3d 1208 (10th Cir. 2012) (liberty interest found when adoption process nearly complete and permanency near)
- Thelen v. Catholic Social Serv., 691 F.Supp. 1179 (E.D. Wis. 1988) (prospective adoptive parents with substantial steps may have limited liberty interest)
- Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982) (custodial relation context cited in foster care discussions)
- Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977) (recognition of liberty interest in family life not extended to this context)