Procopio v. JohnsonProcopio v. Johnson
The plaintiffs, hoping to adopt a child, became foster parents to a little girl born to an active drug addict. They nursed her through chronic narcotic withdrawal and cared for her for five years. When the birth parents successfully sought to have custody of the girl returned to them, the plaintiffs sued, asserting a violation of
I.
The lamentable story of Ashley K.‘s childhood began on April 27, 1984, when Ashley was born to a drug-addicted woman who had used heroin and cocaine and prostituted herself during the pregnancy.1 On May 3, 1984, Ashley was found to be a neglected and dependent minor and was placed in the custody of the Illinois Department of Children and Family Services (DCFS).
About the same time, the plaintiffs, Joseph and Marjorie Procopio, contacted defendant Lutheran Child and Family Services (LCFS) to inquire about how they might adopt a child. LCFS informed the Procopios that they would have a better chance to adopt if they became licensed foster parents. The Procopios complied, received their foster parents license in April 1984 and became foster parents to Ashley about a month later. Apparently LCFS and DCFS officials repeatedly led the Procopios to believe that almost no significant barriers would prevent their adoption of Ashley and that she was “97% adoptable.” In the interest of Ashley K., 212 Ill.App.3d 849, 156 Ill.Dec. 925, 927, 571 N.E.2d 905, 907 (1 Dist.), appeal denied, 141 Ill.2d 541, 162 Ill.Dec. 489, 580 N.E.2d 115 (1991).
During the first 16 months of Ashley‘s lifе, she was visited by her mother three times and her father twice.2 Ashley‘s mother, who had a significant arrest record for theft, child neglect, prostitution, forgery and possession of stolen property, was reported using heroin in March 1985. The DCFS nevertheless developed a service plan on April 25, 1985, to work toward the goal of returning Ashley to her parents and to maintain an older sister and brother in the family home as well. On May 8, 1985, however, the state circuit court found Ashley‘s parents, who remained unmarried but who had lived together since 1980, unfit to care for her and granted guardianship to the DCFS. Ashley continued to experience withdrawal tremors and high fevers, but was otherwise progressing well with the Procopios. The September 4, 1985, update of the DCFS service plan continued to indicate a goal of returning Ashley to her biological parents.
In February 1986, Ashley‘s mother, who was completing a methadone drug treatment program, was charged with child abandonment, and her son and older daughter were taken into protective custody. She was arrested for prostitution in March 1986. On December 9, 1986, the circuit court found her to be an unfit parent, and thе DCFS received guardianship of the two older children.
Two days later Ashley‘s mother entered an in-patient drug program, but left the program in March 1987 prior to completion. She enrolled instead in an outpatient methadone maintenance program. In June 1987 Ashley‘s mother purchased a house with her own mother; Ashley‘s father, who lived in the house with Ashley‘s mother and grandmother, also entered a methadone maintenance program.
Ashley‘s biological parents filed a juvenile court petition on December 29, 1988, seeking custody of Ashley. Although various psycholоgical reports recommended that Ashley should remain with the Procopios, DCFS supported her return to her biological parents. In April 1989, DCFS began working with defendant Hephzibah Children‘s Association on a plan to effect Ashley‘s move. In July 1989, DCFS took Ashley from the Procopios and placed her with Hephzibah. At this point Ashley‘s parents had not used drugs for more than a year and had completed a DCFS service plan. On August 29, 1989, the juvenile court returned custody of Ashley to her natural parents.3
On August 29, 1992, the Procopios filed a three-count complaint in federal court against the DCFS, DCFS directors, Hephzibah and LCFS. This case presents a story of what must have been a severe and prolonged emotional trauma to Ashley, but the problem presented to the federal courts is a narrower one than that. The Procopios asserted one federal claim under
II.
We review the district court‘s dismissal of the plaintiffs’ claims de novo. The Procopios’ section 1983 action requires them to prove that they have a liberty interest in their family relationship with Ashley that the state could not impair without due process.4 If they demonstrate such an interest, they then must show that the process accorded them was not constitutionally adequate. The Procopios contend that their liberty interest in their family relationship with Ashley derives from Illinois state law and from the federal statutory scheme governing reimbursement for various state and child welfare services, the Adoption Assistance and Child Welfare Act of 1980,
The power of the state to regulate biological family relationships is limited. See, e.g., Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). How far that limitation extends to nonbiological families is less clear. The Supreme Court has recognized that biological relationships are not the “exclusive determination of the existence of a family” and that emotional attachments play a role as well. Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 843-44, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14 (1977). But the Court has stopped short of deciding that foster family arrangements achieve the status of a liberty interest that states cannot disrupt without due process. See id. at 847, 97 S.Ct. at 2111.5 The scope of the liberty interest at stake, according to the Court, is appropriately ascertained from the parties’ expectations and entitlements as they are set out in state law. Id. at 846, 97 S.Ct. at 2110; Lindley v. Sullivan, 889 F.2d 124, 130 (7th Cir.1989) (stating that a foster family‘s rights arise from state statute).
The Procopios contend that two different state law provisions support their claim that their relationship with Ashley amounts to a liberty interest. First, they argue that the Illinois Adoption Act confirms that foster parents are to be preferred above all others as the foster child‘s permanent family. Specifically, paragraph 1519.1 provides that the child‘s legal guardian “shall give preference and first consideration to [the foster parents‘] application over all applications for adoption of the child but the guardian‘s final decision shall be based on the welfare and best interest of the child.”
We agree with the district court that this statutory language does not suffice to create a liberty interest in the Procopios’ family relationship. Notwithstanding the preference state law grants to foster families seeking to adopt their foster children, this priority does not rise to the level of an entitlement or expectancy. Cf. Johnson v. Burnett, 182 Ill.App.3d 574, 579, 131 Ill.Dec. 517, 522, 538 N.E.2d 892, 897 (1989) (describing a foster parent‘s role in Illinois as “that of a temporary way station on the road of a child‘s life,” not a family for whom a future permanent situation is guaranteed). State law still requires that foster families who wish to adopt obtain the permission of the natural parents,
Second, the Procopios claim that the Illinois Juvenile Court Act of 1987,
We are not persuaded that this language in the Juvenile Court Act serves to create a liberty interest in the Procopios’ family relationship. As the language preceding the quoted passage makes clear, the Act strives foremost to secure appropriate care and guidance for each child “in his or her own home” and to “strengthen the minor‘s family ties whenever possible.”
In addition, the Procopios have difficulty overcoming this court‘s decision in Kyees v. County Dep‘t of Public Welfare, 600 F.2d 693 (1979), where we held that Indiana law did not creatе a constitutionally protected liberty interest in a foster family‘s relationship that required due process before it was disrupted. Id. at 699. Kyees acknowledged that Indiana law creates an expectation that the foster child‘s situation will be altered only when in her best interest, but concluded that the law makes clear “the likelihood or virtual certainty of eventual termination of the foster relationship.” Id. at 698.
Admittedly, Kyees addressed Indiana law, not Illinois law. But even if, as the Procopios argue, Illinois endorses more strongly than Indiana the idea of permanent foster care, the language in Kyees is telling. The Kyees court stated that “[b]ecause they can be ended by the state, foster families must, then, be seen as enjoying a considerably more limited ‘liberty’ than natural families or those related by adoption.” Id. at 698. Despite the differing emphases on the possible permanence of foster families, the state‘s ultimate power to terminate those arrangements--a power that both Illinois and Indiana have--is dispositive. Under Kyees and Illinois statutory provisions that actually curb foster families’ expectations of permanent family relationships, the foster family‘s existence is subject to the state‘s determination that it should continue, and Illinois law can create no expectancy of a constitutionally protected liberty interest. See also Drummond v. Fulton County Dep‘t of Family & Children‘s Serv., 563 F.2d 1200, 1207 (5th Cir.1977) (concluding that “in the eyes of the state, which creates the foster relationship,” the relationship gives rise to no state-created right), cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1141 (1978).
The Procopios also argue that section 1983 provides a remedy for the defendants’ violation of federal law--in this case, the Adoption Assistance and Child Wеlfare Act of 1980 (AACWA), 94 Stat. 500,
Section 1983 is available as a remedy for violations of federal statutes where the statute itself creates enforceable rights. Wright v. Roanoke Redevelopment and Housing Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). In the recent case of Suter v. Artist M., --- U.S. ----, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), however, the Supreme Court held that another provision of the AACWA does not create rights enforceable under section 1983. The decision involved section 671(a)(15), whiсh required states to have a plan providing for reasonable efforts to prevent removal of children from their homes and to facilitate reunification of families.
The plaintiffs contend that section 675(5)(C) is distinguishable from the provision considered in Artist M. and does create a federal right enforceable under section 1983. Appellants’ Br. at 28-29. The Supreme Court has developed a three-part inquiry for evaluating a federal law‘s enforceability under section 1983: that inquiry examines (1) whether “the provision in question was intended to benefit the putative plaintiff,” and if so, (2) whether the provision reflects merely a congressional preference instead of a binding obligation or (3) whether the interest the plaintiff asserts is so “vague and amorphous” that it is “beyond the competence of the judiciary to enforce.” Wilder v. Virginia Hosp. Ass‘n, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (citations omitted).9
We first examine whether section 675(5)(C) is intended to benefit the plaintiffs. On its face, the section defines the required “case review system” as a procedure for assuring that “procedural safeguards will be applied ... to assure each child in foster care ... of a dispositional hearing” within 18 months.
But we need not base our decision on a definitive conclusion that section 675(5)(C) was not intended to benefit the foster parents. For even if it could be so construed, the provision cannot overcome the second hurdle for establishing a federal right enforceable under section 1983 in light of this circuit‘s recent interpretation of Artist M.‘s effect on existing precedent on this issue. Under the Wilder framework, once the court perceives an intended benefit, the provision still does not create an enforceable right if the statute “reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the governmental unit.” Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. Wilder held that the Boren Amendment to the Medicaid Act--an Act that, like the AACWA, required each state that sought federal reimbursement for costs to submit a plan describing the state‘s program--created substantive federal rights enforceable under section 1983. Id. at 523, 110 S.Ct. at 2525. Notwithstanding Wilder, Artist M. seemed to hold that the AACWA provision does not create such enforceable rights in part because the requirement it imposes on the states “only goes so far as to ensure that the State have a plan approved by the Secretary which contains the ... listed features.” --- U.S. at ----, 112 S.Ct. at 1367.11
If Artist M.‘s effect on Wilder‘s approach was unclear, this court‘s broad interpretation of Artist M. in the recent case of Clifton v. Schafer, 969 F.2d 278 (7th Cir.1992), left little doubt that the Procopios’ federal statutory argument is thwarted by Artist M.‘s modified application of the Wilder scheme. Clifton held that a federal regulation providing for continuing payment of welfare benefits pending a hearing did not give rise to section 1983 liability because the statutory provision, like that in Artist M., “does not explicitly require continuing reimbursement pending a hearing,” but instead “requires only that the state adopt a plan” providing for such requirements. Id. at 284.
As the Clifton court acknowledged, Artist M. also emphasized the vagueness of the AACWA provision at issue in that case; the provision at issue in Clifton, on the other hand, was admittedly “not nebulous and variable from case tо case.” Id. Downplaying that aspect of Artist M. as merely the Court‘s way of distinguishing Wilder,12 the Clifton court based its holding on Artist M.‘s understanding of the binding nature of the provisions asserted. Under that approach, the provision at issue in Clifton conferred only the right to a plan complying with the requirements, not a right to challenge any deviation from those requirements. Because the plan itself was concededly legal, the plaintiff had no right enforceable under section 1983. Id. at 284-85. For better or for worse, then, under the authority of this circuit, Artist M. precludes the Procopios’ federal statutоry claim.13
It is somewhat unclear from the Procopios’ brief whether they also argue that section 675(5)(C) of the AACWA is itself the source of a liberty interest the deprivation of which requires due process.14 To the extent the Procopios make such an argument, it necessarily must fail. In a different context, this court has noted the fundamental logical flaw in viewing the process as a substantive end in itself. “If a right to a hearing is a liberty interest, and if due process accords the right to a hearing, then one has interpreted the Fourteenth Amendment to mean that the state may not deprive a person of a hearing without providing him with a hearing. Reductio ad absurdum.” Shango v. Jurich, 681 F.2d 1091, 1101 (7th Cir.1982). As the Supreme Court has made clear, a liberty interest is a substantive interest and “[p]rocess is not an end in itself.” Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983); see also id. at 250 n. 12, 103 S.Ct. at 1748 n. 12 (further noting that “an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause“); Fleury v. Clayton, 847 F.2d 1229, 1231 (7th Cir.1988) (“There is neither a ‘liberty’ nor a ‘property’ interest in procedures themselves.“); Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644, 648 (D.C.Cir.1987) (stating that “the notion that naked process itself takes on constitutional dimensions has most troublesоme implications“); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir.1985) (stating that the mere existence of reasonable procedures entitling one to a hearing does not give rise to an independent substantive liberty interest). We likewise conclude that under the circumstances of the case before us, the procedural guarantees embodied in section 675(5)(C) of the AACWA do not give rise to a constitutional liberty interest.
Because we hold that the Procopios have not established that state or federal law creates a liberty interest in Ashley‘s foster family relationshiр, we need not consider whether the procedures the state afforded them were constitutionally adequate.
III.
Although the Procopios’ plight is a sympathetic one, their long-term foster relationship with Ashley does not create an interest within the Fourteenth Amendment‘s protection of liberty, and the federal Adoption Act does not confer on them an enforceable right to a timely hearing under section 1983. For the foregoing reasons, we AFFIRM the ruling of the district court.
Notes
The statement provides:
Purpose and policy. (1) the purpose of this Act is to secure for each minor subject hereto such care and guidance, preferably in his or her own homе, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community; to preserve and strengthen the minor‘s family ties whenever possible, removing him or her from the custody of his or her parents only when his or her welfare or safety or the protection of the public cannot be adequately safeguarded without removal; and, when the minor is removed from his or her own family, to secure for him or her custody, care and discipline as nearly as possible equivalent to that which should be given by his or her parents, and in cаses where it should and can properly be done to place the minor in a family home so that he or she may become a member of the family by legal adoption or otherwise.
Although some have argued that Suter v. Artist M., --- U.S. ----, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), superseded the well-established approach set out in Wilder, as the First Circuit recently noted, “it is much too early to post epitaphs for Wilder and its kin.” Stowell v. Ives, 976 F.2d 65, 68 (1st Cir.1992). The court stated:
For one thing, Suter offered no analytic framework to replace the structure erected in the Court‘s previous decisions. For another thing, the Suter Court, while weakening earlier precedents in certain important respects, was cаreful not explicitly to overrule them [and indeed] relied on those precedents as pertinent authority.
Id. The court thus found it “both prudent and possible to synthesize the teachings of Suter with the Court‘s prior precedents.” Id. We proceed under the same assumption.