Robert George Drummond and Mildred Pauline Drummond v. Fulton County Department of Family & Children's Services

lative, subject to the admit- attenuated national jurisdiction concerns and of- traditional persuasive arguments of the Federal Govern- fered no tedly superior why as to regulate inter- ment, Congress, Georgia compensation to law of through is unrea- inadequate commerce”. Id. sonable or to achieve foreign the broad state careful not to Congress goals of Federal Power Act. I at 915. conclude plants that “the regulation hydroelectric application of federal common cast the mold; it decided to entirely presented federal law to resolve the issue in this in an regulation promote many of the incidents case no federal interests leave history shows legislative approaching magnitude even the states.15 those - Miree, over whether licen- by Congress supra, concern found Clearfield”. no at-, according Thus, land pay for condemned S.Ct. at 2493. sees there compensation. “significant Georgia’s or federal rules of is no conflict”. law state to exercise —the should be Congress applied. had —but failed uniform, application assure power to put simply: To We had make a exercise of eminent federal standard law, choice of but I am convinced that the federal, acquire power, domain state majority wrong has made the choice. federally regu- to build these land on which respectfully I dissent. Against background, I lated facilities. majority’s exotic inter- concur in the cannot Congress surely intent that

pretations of an

never had.

IV. CONCLUSION sum, dispute that there is a I do not promoting national great George Robert DRUMMOND and energy. development of domestic sources Drummond, Mildred Pauline instance, Congress, in the first But it is for Plaintiffs-Appellants, how this interest is to be achieved. say regulatory scheme comes Where federal with state law and thus with a in conflict FULTON COUNTY DEPARTMENT OF interest, we need some affirmative FAMILY & CHILDREN’S SERVICES Congress

indication that intended the feder- al., Defendants-Appellees. et govern go common law to before we al No. 76-1888. displacing about state law. Such an indica- might pres- the mere Appeals, tion be inferred from United States Court of significant ence of a conflict it sub- Fifth Circuit. stantially impedes achievement of federal Nov. Otherwise, presume aims. we are to Congress felt the national interest ade- by application served of state law.

quately fairly think it can be said that

I do not the result reached

Congress intended that, Failing we are left to ana-

majority. federal and state inter-

lyze respective determining apply. which law to

ests in clear, substantial and immediate

Against only specu- met with

state interests we are Act, resulting integration respective setting up 15. “The out the without a divided au- thority subject”. jurisdictions Hy- over one of the state and Federal Govern- First Iowa ments, preservation Coop., supra, is illustrated the careful dro-Elec. 328 U.S. at separate through- interests of the states at 916. protection and the due process clauses of Amendment, the Fourteenth they sought preliminary permanent injunctive re- lief, which was denied the district court. Although panel of this Court reversed, Drummond v. County Fulton Department of Family & Services, Children’s 547 F.2d (5th 1977), Cir. the full Court finds no deprivation of constitutional and af- firms the plaintiffs’ dismissal of complaint. Initially, the en banc adopts discussion, reasoning and result contained opinion the dissenting the panel deci- sion in' this as matter the correct statement of the law in this case. That opinion is reported in 547 F.2d at 857-861. We fur- ther here, address however, the issues view argument oral before the full Court, a subsequent case decided by the Court, United States supple- and mental briefs filed with this Court. background The factual dispute of this Hames, Margie set out in full Bradley, Judge Pitts Neil Atlan- Tuttle’s thorough ta, Ga., opinion plaintiffs-appellants. panel for for the which considered this case. 547 F.2d 835-857. A brief recapitu- Mote, Reinhardt, L. Daniel S. Car- Robert lation will suffice to the following Atlanta, Ga., Cosgrove, ol A. for defend- discussion in context. ants-appellees. In December an emergency situa- Turem, Atlanta, Alan R. (Court-ap- Ga. tion, a one-month-old mixed race child Krischner, Atlanta, R. pointed), Andrew named Timmy placed was for temporary Ga., Special Counsel for Interest Child care in the home of Mr. and Mrs. Drum- _Timmy. mond the Fulton County children’s ser- vice agency. Lengthy proceedings were commenced to determine whether the child should permanently removed from his BROWN, Judge, natural custody Before Chief and TUT mother’s for TLE, THORNBERRY, COLEMAN, adoption. GOLD BERG, AINSWORTH, GODBOLD, MOR a year, Within the Drummonds had be- GAN, CLARK, RONEY, GEE, TJOFLAT, come sufficiently attached Timmy to to re- FAY, Judges. HILL and Circuit quest permission adopt him. The Drum- monds had signed agreement not an that RONEY, Judge: Circuit they try would not adopt their foster Plaintiffs, Robert and Drum- Mildred child, practice common many with mond, couple, a white state-desig- acted as placement agencies. Although the level of nated foster of a mixed race child provided care them as foster had years. for over two When defendant consistently excellent, been rated was there adoption agency decided to remove an emerging consensus within the defend- permanent placement the child for in an- placement ant child agency charged with home, plaintiffs other this commenced ac- Timmy’s care be best to look tion Alleging under 42 U.S.C.A. § elsewhere for permanent adoptive home. of their equal denial under both the When explained this was to the Drum- appeared to ac- is obvious that race did enter into the March monds in however, year, August of By Department. decision of the quiesce. request adopt their they had renewed . appears to the Court [I]t Timmy. properly of race was consideration interest of the child directed to the best legally freed for was not The child thing automatic-type was not until Georgia Sep- courts by the adoption is, go that all blacks signaled placement, this the end or of Because tember 1975. Timmy families, to his attempt go to return all whites to white to black mother, agency began more families, go natural all mixed children of what ultimate consideration focused families, prohibited. which would be black Timmy. After be best placement would rep- appointed appeal On counsel with the Drum- of discussions a number interest in this liti- Timmy’s separate resent monds, decision-making meeting was a final gation. agency 1975 with 19 em- in November held presented to the en banc The case as now Although the Drummonds present. ployees major four issues for reso- Court formulates meeting, casework- present were (1) did the action of the defendant lution: during them with who had dealt ers equal protection; (2) a result of constitute denial of attend. As years two did past agency decision was meeting liberty do the Drummonds have final Timmy from the Drum- to remove made in their property relationship with deny the Drummonds’ and to mond home Timmy; (3) right; does have such a It is clear that the application. adoption exist, (4) if such how much pro- and Timmy of Drummonds and race of the protection required cedural is in order to parties giv- were of the the racial attitudes safeguard them? coming to this con- weight in en substantial employees were also agency The clusion. I. Timmy grew older he would aware that of his black fa- the characteristics retain The Drummonds and counsel for the plaintiffs months later ther. A few equal the state denied them contend that filed suit. protection of the laws because of the extent pre hearing request on the for A making in the to which race was considered scheduled for Janu liminary injunction was adoption Although complaint decision. 23, 1976, days after the suit was ary nine alleged determining that race was the sole discovery period some begun. During factor, that this the district court found was parties. At the be by the was conducted case, finding was not clear- not hearing, the trial court con of the ginning argument The has thus cen- ly erroneous. hearing preliminary on the solidated question on the of whether a state tered merits, pursu trial on the injunction with a agency, charged responsibility with the of under Fed.R. discretionary powers ant to its in placing adoption custody, child its 65(a)(2). Civ.P. the race may take into consideration appeal, cited as error on Although prospective adop- child and the race of the responsible ex- represented consolidation violating equal tive without in view judicial discretion ercise clause of the United States Con- protection contest and legal nature of the essentially stitution. prompt action on this case. the need for 7 Federal Practice generally Moore's See in which race The manner was 1975). (2d ed. precise 165.04[4] frames the considered in this case issue before us. The district court found argu- witnesses and hearing six After in race was not used an automatic court, order, verbal ments of counsel application fashion. The Drummonds’ on the merits. complaint dismissed rejected on automatically not racial decision, the court made rendering that grounds. finding may This not be dis- finding: following

1205 clearly adoption placement. here not erroneous. consider race turbed because 52(a); United v. United Fed.R.Civ.P. States cases which have addressed prob 364, Co., Gypsum that, States 333 lem indicate while the automatic use 525, (1948). 92 L.Ed. 746 But can race be barred, of race is the use of race as one of account, decisively if perhaps taken into it making the factors in the ultimate decision tips is the factor which the balance between legitimate. Adoption Minor, In re 97 families, potential two it is where used 99, U.S.App.D.C. 101, 228 F.2d 448 conclude, automatically? We as did anoth- (1955); McKeithen, Compos v. 341 F.Supp. er grappled problem, court which with (E.D.La.1972). “the difficulties inherent interracial adoption” justify the consideration of Third, “race professional literature ” adoption, as a relevant factor in . . . subject on the place transracial child McKeithen, v. Compos F.Supp. importance ment stresses the of considering court). (E.D.La.1972) (three-judge the racial attitudes of potential parents. against constitutional strictures racial regard, In this Court discrimination are not ignore mandates to recently provided guidance. has some experience accumulated of unbiased appears government even activity if professionals. couple A has no racially disproportionate impact, has a adopt a rear, child is not equipped to does- impact alone not sustain a claim of according to the professional literature race racial of racially discrimination. “Proof directly bears on that inquiry. From the discriminatory purpose required intent or perspective, child’s the consideration of race . Arlington . . .” show violation simply another facet finding him the Metropolitan Housing Corp., Heights possible best home. Rather than eliminat 252, 265, 50 L.Ed.2d ing categories certain of homes from con suggestion been no There has sideration it avoids the potentially tragic before this the defendants had possibility placing child a home with any purposes other than to act the best cope who will not be able to with when it interest of the» child considered problems. the child’s Furthermore, Supreme race. Court has area of recently stated the sensitive vot- Fourth, analogous inquiry over the ing apportionment that consideration of considering of permissibility religion of United impermissible. race is not Jewish adoptive parents, would-be numerous courts Williamsburgh, of Organizations Inc. v. have infirmity. found no constitutional See 144, 996, Carey, 430 97 S.Ct. 51 L.Ed.2d generally, Religion Annot. as a Factor in opinion in (1977). plurality As the that Adoption, (1973). 48 A.L.R.3d 383 Those remarks, case where race is considered in a cases make the same distinction as this nondiscriminatory is fashion and there “no Court makes in the long racial context. So respect stigma or with to whites racial slur religion as factor, is not an automatic its race,” or other there is no discrimina- of consideration one a number of factors tion of violative the Fourteenth Amend- unobjectionable. 165, 97 S.Ct. ment. 430 U.S. at 1009. Finally, adoption agencies quite frequent- concluding In that there has been no de- ly try a child he can where most equal protection nial in these of circum- a easily family become normal member. stances, following we note the factors. duplication biological of his natural en- First, of in the child consideration race part vironment of program. that Such process suggests no racial slur or placement age, color, eye factors as hair color and stigma in connection with race. is a parents facial features of are child con- thing for children to raised natural sidered in reaching decision. This flows background. of parents their same ethnic from the belief adoptive child and Second, parents cited to adjust family no case has been can best to a normal suggesting impermissible that it relationship Court if the child is with adop- 1208, (1972); 31 L.Ed.2d 551 Pierce v. actually par- S.Ct. have could who tive Sisters, of 510, 45 consideration permit Society To of 268 U.S. him. ented necessarily carries (1925). characteristics physical L.Ed. 1070 racial charac- to consider permission itwith parents possess that foster argument have the not does This Court teristics. protected placed square- interest was such a wisdom assess the expertise to professional before, by, Supreme ly and discussed prov- but it is our inquiry, type of of that in its recent decision in Smith conclude, today, that as we do ince Equali- of Foster Families for Organization factors is of those race as one use of Reform, ty & 431 U.S. 97 S.Ct. unconstitutional. (1977) 53 L.Ed.2d 14 [hereinafter OFFER]. Although the Court did not find it II. necessary to resolve whether such an inter- claim of make out a order to exists, est Justice Brennan’s discussion of Amendment due of Fourteenth deprivation helpful analysis. claim is to our He must demonstrate plaintiff first considered the elements which have liberty first, deprived has been that he traditionally thought been to define the sense, and constitutional property course, concept “family.” Of the Court second, deprive used to procedure constitutionally recognized importance that “the of the fa- interest him of Roth, Regents v. relationship, Board milial to the individuals in- deficient. 33 L.Ed.2d society, and to the stems from the volved emotional attachments derive from the intimacy daily association.” Nonethe- A. less, the Court then noted several differ- possible two con- assert The Drummonds families, between foster and natural ences interests. property liberty and stitutional particularly parent the fact that the foster concept plaintiffs involves a The first law, relationship genesis has its fami- “psychological denominated have biological relationship, unlike the and that second, reputa- their stigma ly”; with foster there is often a natural rejection by upon the alleged to accrue tion parent seeking competing liberty to assert a adopt application their agency of interest. Timmy. We conclude that there is no such consti- during maintain that Plaintiffs tutionally in the context feel Timmy lived with them mutual period understanding case. An of the role dependence developed of love and ings parent placement of the foster in a child found in most analogous to those which are helps plain. make this conclusion In the characterizing By so biological families. adoptive parents, thorough search for inves- they seek to come situation their home tigations long range are made so that con- courts have af protection which within given siderations be substantial family They unit. assert that to the forded 74-409, weight. Ga.Code Ann. 74-410 §§ part of the relationship to their adoptive (Supp.1976). parents Potential are protect privacy which is right familial family evaluated forward in the full con- the Fourteenth Amend interest under adulthood, through marriage, a child’s text Connecticut, See, g., e. Griswold v. ment. “adoptive” backward to the offspring, and 1678, 479, 485, 14 L.Ed.2d U.S. 381 uncles, aunts, grandparents, and cousins. “psychological parents” (1965). As 510 family The attitudes of other members are to the they claim entitlement Timmy, of short, goal duplicate is to examined. to in numerous de rights referred parental relationship persons that most have See, Yoder, g., Wisconsin v. 406 e. cisions. parents during with their natural their en- 1526, 205, 15 92 32 L.Ed.2d S.Ct. Illinois, 645, 92 tire lives. Stanley v. 405 U.S. (1972); Department of Human Re- which law Georgia against

The state warns the the fos- promulgated Adoption has an Serv- ter context. As Justice goes sources Stewart on to say OFFER, sets the philosophy Manual which forth in it is ices .hard to “believe that finding parents. adoptive in The such breakdowns it uses . . . system must be manual states: or forever frozen in their existence the Due Process Clause of the Adoption meeting on services are focused Fourteenth Amendment.” at by securing needs of children 862, 97 S.Ct. 2119. There is no basis in permanent families. children them Some law, Georgia which infants; creates the many foster parents who need are are relationship, justifiable for a children; expectation physical, some have intel- older relationship will be left undis- handicaps; lectual and emotional some Sindermann, turbed. Cf. Perry v. minority 408 U.S. groups; are children of others (1972). S.Ct. L.Ed.2d 570 A heritage. per- children of mixed are True liberty rights do not flow from state plan right every home or is the of manent laws, repealed which can be action of the finding Inherent in the of child. legislature. Unlike property rights they recognition is the parents for children have a more stable source in our notions of children have basic certain needs. intrinsic human rights. very The fact that of the Division is to seek philosophy the relationship before us ais creature of who adoptive for children need homes law, as well as the fact it has are parents emotionally physi- who recognized never been as equivalent to ei- cally capable assuming the responsibili- ther family natural the adoptive ty parenthood and who are flexible court, family by any demonstrates enough accept them for their intrinsic protected liberty interest, not a but an in- worth. terest limited the very laws which create During process Georgia, in chil Bishop Wood, it. See 426 U.S. are an dren foster homes as alter (1976). L.Ed.2d 684 native to institutional care for what noting needs that this conclusion does clearly designed phase as a transitional not necessarily every control “foster fami- the child’s life. Ann. Ga.Code 24A-1403 § ly” situation, only but those in which a child (1976). parents Foster are thus considered placement agency charged custody with the on the quality tempo basis of the child, places temporary that child for expected provide. care can rary they care. Other situations will have to be ad- Therefore, state, eyes dressed on a case case basis. relationship, creates the foster the relation ship temporary is considered at the outset plaintiffs assert second liber gives rise to no state created ty attempt bring them parents. the foster Drummond v. Fulton selves within the ambit of recently decided County Department Family & Children They cases. claim that Services, 237 Ga. 228 S.E.2d 839 deny decision to them the adopt As Justice Stewart remarked in his concur Timmy and to remove him from their home OFFER, ring opinion in “any case where stigma casts upon their reputation. They the foster had assumed the emo assert all satisfy requirements which role of the tional child’s natural have judicially imposed been to make aout represent triumph sys would not a of the constitutional for reputation. claim harm to tem, constitutionally safeguarded to be In implicate interest, order to such an intrusion, a failure.” 431 but from plaintiffs must they demonstrate first that 861, at S.Ct. at 2119. 97 U.S. have right been denied a previously recog- Here, potential time nized state in conjunction with a liberty assert defamatory could a interest finding about them. v. as Paul Davis, 693, psychological parents they 1155, would be when 424 U.S. 96 47 S.Ct. developed (1976). Second, precisely relationship had L.Ed.2d 405 they must 1208 Thus we finding factually inaccu- conclude that the Drummonds

challenge this 624, Velger, protectable liberty 429 97 S.Ct. no rate. Codd v. U.S. have interest in this 882, (1977). there Finally, 92 51 L.Ed.2d case. publication of the out- be defamation

must Bishop v. litigation. side the context of B. 2074, 341, Wood, 96 48 426 S.Ct. Independent Timmy counsel Although plaintiffs L.Ed.2d 684 liberty right personal Timmy claims a tests, satisfy tried each of these have which he must be asserts dealt with in any liberty interest they have not shown constitutional due terms. The in requires procedural which “reputation-plus” upon terest which he this is one bases claim process. due he has call the “right which chosen to to a findings plain First, about the argues He stable environment.” that a which can be considered tiffs are not those right has a not to liberty child be moved plaintiff ac defamatory. Paul the was home, home to without a prior from hear shoplifter, of at being a in Codd cused ing, particularly light significant suicide, tempting Bishop and in of insubor a literature which indicates traumatic ef offi “conduct unsuited to an dination and such young fect of moves on children. allegations might cer.” These are all insists exists regardless Counsel this those had collateral effects when have natural, adop of whether child is in a sought employment, and are alle plaintiffs setting tive or foster and in all tempo other false, which, given gations might if have rary care situations. Here, actions. rise to state law defamation finding sole about Drummonds contention, to the novelty Due of this agency, they judgment no authority support counsel cites of such parents for Tim are not the best available stability He relies on cases such interest.. beyond for a my, part at least in reason Gault, 1428, re as In 387 U.S. S.Ct. i.e., control, their Their treat their race. (1967), L.Ed.2d 527 McKeiver Penn- spo was ment of as foster sylvania, of in terms. would thus glowing ken It (1971), proposition L.Ed.2d for the no at all. seem there has been defamation juvenile’s cannot changed a “status” be procedural process. without In those Second, chal- although the Drummonds cases, however, protected liberty they conclusion that lenge ultimate clearly stake, juveniles was at since the adoptive not the most suitable would be were facing delinquency charges involved they alleged Timmy, have not parents for which could have resulted in incarceration. particular agency’s factual errors in the liberty interest was thus not an inter- findings. They are in fact information or environment,” est in “stable in not white, pic- had agency an accurate around, moved being but in health, staying out age, ture their education jail. data. some indica- other relevant Absent their

tion that able to “clear Fano, Meachum v. 427 U.S. hearing, they invoking names” are (1976), speak 49 L.Ed.2d 451 seems to Codd, protected supra. interest. such against an interest as asserted here. There, Finally, prisoner which the a state was upon the information transferred security until to a agency public acted was never made from a medium maximum litigation. security facility foster chil- because he suspected normal for was having eventually prison. be removed from foster started a fire in first dren publicly contending hearing which He filed suit Nothing homes. occurred that a required Drum- any aspersion upon the before transfer. would east Court, unable inter- agency monds. could action to discern Nor involved, attempt est relief. way affect the Drummonds’ denied Notwithstand- ing children in the the fact that the transfer was motivat- adopt other future. part of by specific misconduct on the the New York course, model. Of OFFER does clearly a prisoner, punitive purpose and had not mandate the New York model as consti- effect, liberty the Court found no inter- tutionally necessary every in case. None- est. Other recent cases have led one author theless we face a scheme which is admitted- Supreme that the Court analysis to the “has ly rigorous less procedural in its trappings. grown increasingly uncomfortable with the Thus, we have been required to face head open concept vaguely of ended defined on question and resolve the which was the appears prefer due interests. It to subject of Supreme the assumption. Court’s analysis is both more concrete as doing In so we have concluded that there is application.” well as more restricted its liberty no interest here full-fledged of con- Court, Term, Supreme 90 Harv.L. magnitude. stitutional (1976), certainly Rev. There is no itself, however, OFFER by pre by concrete or well-defined interest shown termitting question of the existence of this case. facts of interest, protected a open possi leaves Here, interrupting motive the state’s bility that some such an might interest ex Timmy’s point environment at was al- Although ist. no liberty interest of sub ways move him a con- magnitude present stantial is in the instant range, superior, long sidered over the for situation, might some find lesser interest particular his needs at the time. Since in these deserving protection facts of some point to can no source for a against arbitrary conduct. We thus con we program, conflict with that state hold procedures sider whether afforded in liberty no Timmy has interest as as- Georgia adequate protect were whatever is serted here. This decision its facts might interest be at stake. The nature of necessarily applicable to an infant of Georgia procedures is set out in detail in years placed tender in a foster home for the panel opinions reported in 547 F.2d 835. length of time and under the circumstances course, required Of degree of proce “[t]he here involved. We cannot decision here safeguards directly dural varies with the every situation, address conceivable in some importance of the private interest affected may acquired of which child have some and the for and need usefulness of the interest, as alluded to in Justice Brennan’s particular safeguard in given circum opinion in OFFER. inversely stances and with the burden and any other consequences adverse of afford III. ing it.” Friendly, of Hearing, Some Kind OFFER the Court assumed 1267, 1278 (1975). U.Pa.L.Rev. See also arguendo existence liber- Murray’s Lessee v. Hoboken Land & Im ty interest, test proceeded and then Co., provement U.S.) 272, (59 18 How. against placement New York child scheme L.Ed. The Fourteenth process. It strictures was able to Amendment so not inflexible as to re procedural do this because extensive quire trial-type hearing every interest safeguards incorporated into the New York worthy protection. felt Nor is the Geor ultimately scheme were found sufficient gia against scheme to be measured New protection liberty for a mag- York’s, since OFFER in no sense elevates OFFER, holding therefore, nitude. The the New York scheme into a constitutional strength pro- that whatever standard. interest, provided tected New York ade-

quate safeguards. IV.

This that ap- unable follow To the extent there be some proach gainsaid this case. cannot undefined interest in this case that could Georgia removing that the mechanism for be treated arbitrarily, the state we child from foster home is much more note afforded defend “judicial” informal much than to comport less ants sufficient with the 1210 produced in con- information mandate could be a more Amendment at

Fourteenth trial-type hearing interest. structured that would nection with such superior to a decision Timmy’s lead about frequently stressed It has been The reason is placement. obvious. In most are flexible of due requirements the hearing situations, the question to re- be vary time and circumstances. with and Here, however, solved is one of fact. 471, 481, Brewer, 408 92 Morrissey v. U.S. question essentially is poli- ultimate one of (1972); 484 Cafeteria L.Ed.2d 33 S.Ct. art, cy. placing Child is an science a McElroy, Workers computerized can be rigid follow recently, (1961). Quite L.Ed.2d The home for Timmy rules. “best” is basi- the test to articulated subjective a cally determination. Should determining is due what be used opportunity intellectual be stressed over fi- test any particular circumstance. That opportunity? nancial or athletic Is a rural (1) in private requires consideration setting preferable city? to the age What stake; (2) the risk of erroneous at terest his adoptive parents should be? In what and present procedure decisions under structure? order social Should making which improvement in decision be given placed siblings, child with older procedural safe flow from additional would siblings younger siblings? no ques- or The governmental guards; (3) and go pages. could for ques- tions on These Eldridge, involved. Mathews v. policy inquiries, not tions are factual dis- 319, 335, (1976). 47 L.Ed.2d 18 The putes. utility hearing in such a test at bar Applying this the case is situation doubtful. As one commentator procedures currently that the in use reveals noted, has constitutionally adequate compro- strike are at their best specific when [t]rials private presuma- mise. The interest here is adjudicative dispute. facts are in Trials stability bly privacy, reputation, and seldom legislative are desirable either on above, concerns discussed the interest flow- or on facts broad factual That a issues. love, ing from and concern affection has plaintiff interest at stake developed the Drummonds and between does not that he is mean entitled to a Timmy. trial, appropriate because an issue agency The decision in this case to be trial be absent. format, as all any procedural made under Davis, K. Administrative Law of the Seven- concede, placement is “what is in best ties 7.00-11 at 276 § subsidiary The in- interest of the child?” we Finally, consider the in- Government’s deciding quiries which must addressed desires, course, The terest. Government question complex numerous. are and consistently act with child’s best in- max- present procedure designed to concern, however, terest. Its additional ques- these answering imize information in efficiently possible. to move as Children interviews were had with tions. Several expense, foster care are while parents. The observed the foster child was adoptive generally those in homes are not. mentally medically. tested and Data and is necessary extreme haste in an Sometimes about the child’s natural was collected emergency to a child in foster care. Persons in vari- mother and father. trained quicker child can be in a skills, including psychology and social ous home, permanent presence better. The process. are Informal- work involved procedural safeguards of additional ap- and spontaneous elicit and accu- ity was used to procedures peals naturally siow responses inquiries. to sensitive rate placement process down to the detriment of sum, present designed seems system both child state. possible accurate answer obtain most stake, the risk question ultimate difficult Given the nature of the interests involved, has been no the inquiry error minimized. There as well as the overwhelming accurate flexibility indication that additional more need for in this complexity ry hearing held, and the of the decision what, situation was practical as a made, matter, be this Court holds that whatever to could have accomplished been by process by was due was rendered the state hearing such a in view of what hap- had this agency in case. pened staffing? before the My answer to question “Nothing.” AFFIRMED. to equal protection As the contention, it BROWN, Judge, R. Chief JOHN concur- clear abundantly to me that no violation

ring: occurred. The notes Ms. of Payne’s “evalu- ation interview” alone should agree expressed dispositive be While I with the views on this score. and Factors other than Judge Roney fully concur the race were indisputably I taken into opinion, and feel that some com- account: result Drummonds’ focusing practi- tendency overprotective, ment is on be warranted the their capacities, realities of the intellectual age. calities and unfortunate sit- and their Moreover, which the topics uation confronts us. of discussion” “[m]ain at the (see November 21 staffing Plaintiff’s Assuming any pro- the Drummonds have 15) Exhibit age, numbered seven: health, liberty triggers tectible interest which community setting, involvement of extend- due clause of the Fourteenth family, parenting abilities, intellectual Amendment, I believe the record in this environment, and race. that, amply case demonstrates whatever process rights had, Drummonds As to the topics, last these not do more than adequately those were I agree Judge with Roney’s conclusion that safeguarded. race be considered as “a” factor in adoptions without violating equal pro- First, the record shows that those clause, tection but I would state that aas charged responsibility with the awesome practical matter, it should be so considered. concerned, Timmy’s best interest were sen- Indeed, adoption personnel would be blink- professionals.1 Second, and sincere sitive ing reality at if they failed to consider can be no that the there doubt Drummonds race the adoptive parents vis-á-vis the notice, 1975, 17, at had least March I child. would also go so far as to state their home placement very outside was a they give could weight substantial Third, possibility. real Drummonds including race as consideration heard. were The record establishes that factor — things geographical such as the location and personally the Drummonds met with vari- area attitudes involved —without treading at ous case workers on least three occasions: dangerously equal protection rights. on 4, 10, August In- March and October 1975.2 deed, agency personnel, Fourth, without violating the notes of October 4 “evalua- Amendment, the Fourteenth could express- tion interview” conducted Brenda B. ly declare that Payne,3 racial difference Plaintiff’s Exhibit recommend- be- tween the ing “adoptive” child and the the Drummonds be allowed to was primary adopt Timmy, given person making were to each reason for child present staffing placement at the decision. November and Granted that so- ciety Payne community Mrs. read those notes as her not aloud should harbor Payne against “recommendation.” attitudes mixture, at interracial Deposition Thus, it subject 30. cannot be said that the Drum- placement foster home represented adoption child, were monds’ interests at even is the whose life will be meeting. adjudicato- While no formal affected community preju- values and example, present.” 1; p. 1. For the notes of the all November those Plaintiff’s Exhibit 1975, “staffing” emphasis final decision was added. elsewhere, Timmy perti- made to part: approximate- nent “The discussion lasted 2. See F.2d at 838-46. ly group three hours consensus not to adopt allow the Drummonds in full at 547 F.2d at 843-46. Quoted carefully thought personally painful out and ought tody of the child exist, they period not what for a considerable dices specifically of time. New York statute be. problem addressed the that was presented my unwise, and to Lastly, it would As when such contest arose. described in Federal power for mind, arrogation opinion the Court’s in OFFER: sensitive super voyage into Judges 383(2), supra, pro- “Soc.Serv.L. n. § To set matters. adoption realm of state agency placing vides that ‘authorized require dissent standards as the out or child boarding . [a foster] inevitably easy. But sounds in its remove may discretion such child heart to the go policy choices involves home from the where or boarded.’ child, for the probably welfare of the of the regulations implement Administrative we On do the life. what rest of child’s provision. agency is required, this The we, as making choices? Are draw in these notify in to except emergencies, the fos- with sufficient Judges, endowed Federal in parents writing days ter 10 in advance such issues? to decide delicate prescience of 18 removal. N.Y.C.R.R. 450.- § not ourselves that we do should remind We 10(a). The the par- notice advises foster that the of Solomon and possess wisdom if they object ents that to the child’s simple blissfully is not as Timmy’s adoption they may request removal a ‘conference’ cutting baby in half. as department. with the social services department request- Ibid. The schedules concurring in GODBOLD, Judge, Circuit days conferences within 10 of the re- part. ceipt of 18 request. N.Y.C.R.R. I, II III of the parts I concur with 450.10(b). parent may ap- The foster § court. I believe opinion the en banc pear conference, with counsel at at stake protectible if there was a where he will advised of ‘be the reasons procedures followed the State child], removal of the and be [for constitutionally adequate, Georgia were not an opportunity afforded rea- submit join part I not able IV therefore am why sons the child should not be re- opinion. moved.’ 18 450.10(a). N.Y.C.R.R. § official must render a decision writing TUTTLE, Judge, with whom Circuit five days within after the of the close GOLDBERG, Judge, joins, dissent- Circuit conference, and send notice his deci- ing: parents agency. sion to foster and the deference, I Believing 450.10(c). I dissent. The proposed With 18 N.Y.C.R.R. § stayed opinion pending removal is Supreme that the Court Smith outcome of do the conference. 18 N.Y.C.R.R. 450.- Organization of Foster Families § 10(d). Equality Reform, 97 431 U.S. (1977), strongly L.Ed.2d the child

S.Ct. If is removed after the con- ference, expressed supports parent appeal the conclusion foster department of social opinion of this Court that both services for a panel hearing,’ “liberty” adversary ‘fair is a full Timmy have a Drummonds and hearing, administrative under relationship Soc.Serv.L. family foster their 400, the determination which is sub- § destroyed which cannot be ject judicial under review N.Y.C.P.L.R. consider it process hearing, without I 78; however, Art. the removal is au- not opin- necessary from the dissent Court’s tomatically stayed pending hearing ion. judicial (Footnotes review. omit- ted).” THE OF I. “LIBERTY” INTEREST

THE DRUMMONDS 2102-03. Ibid. Furthermore, case arose a contest The OFFER from opinion child and “pre-removal pro- between the natural mother of a to an referred additional safeguard.” had had cus- cedural The Court said: parents foster who continuous words, provides “In other a mech- § On the assumption that either par- foster whereby parent-may a foster anism ob- ents or foster children in New York have pre-removal judicial tain review of an some sort of ‘liberty’ interest in the con- to remove a agency’s decision child who tinuation of their relationship, (footnote omitted). has been in foster care for 18 months or Rather than tiptoeing around issue, more.” this central I would squarely hold the interests asserted the appel- Ibid.1 431 lees are not of a kind that the due process Notwithstanding provisions these clause of the Fourteenth Amendment law, three-judge York district New protects.” enjoined court a removal in the OFFER Ibid. 431 U.S. 97 S.Ct. 2116-17. procedural additional case without safe- guards, having pro- the court found those However, rather than follow course, vided statute were insufficient. the Court took considerable pains to analyze the assertion of the foster and fos- Supreme Court reversed the judg- ter children had constitutionally three-judge court, by say- ment of the protected liberty interest. A careful read- ing the foster did not have a ing of the opinion indicates to me that but protectable Constitution, interest under the for the existence of the ground narrower but because it found “that ‘narrower case that and but for the fact that grounds support’ exist our reversal.” contest before the court was being waged The Court stated: parents between foster on the one hand and that, persuaded “We are even on the parents natural other, on the the court assumption appellees have a protect- readily have determined that such ‘liberty ed interest’ the district court constitutionally protected liberty interest holding erred in the pre-removal pro- did exist. In the first place, the court rec- cedures presently employed by the state ognized that, although “the usual under- constitutionally are defective.” standing ‘family’ implies biological rela- 847, 97 Ibid. 431 U.S. S.Ct. 2111. tionships, and most decisions treating the In view fact the State of relation between parent and child have Georgia “preremoval procedures” has no stressed this element” and that “a biological that will any concept process, fit of due relationship is not present in the case of the subject later, that will be discussed the case usual foster family” nevertheless “biologi- before us demands that a determination cal relationships are not exclusive determi- protectable made whether there is such in- nation of the family.” existence of a Ibid. terest in the Drummonds. 843, 97 2109-10. 431 U.S. S.Ct. Most case, As is I believe that sometimes telling is the following language from the concurring opinion, joined in by the opinion: Court’s Justices, Chief Justice and two of the dra- “Thus the importance of the familial matically emphasizes importance relationship, to the individuals involved majority of the court attributed to the society, and to the stems from the emo- question liberty whether a inheres tional attachments that derive from the relationship par- between the foster intimacy association, of daily and from ents and children who have been in their plays the role it ‘promot[ing] way period care a substantial of time. It would life’ through the instruction of children. simple very have been for the court to have Yoder, Wisconsin 205, 406 U.S. 231- adopted position taken the the concur- 1526, 1541-42, 32 L.Ed.2d 15 ring expressed Justices Mr. Justice (1972), as well as from the fact of blood Stewart: relationship. No one would seriously dis- why

“I cannot understand pute the Court deeply loving that a interdepen- obliged to thinks itself decide these cases relationship dent between an adult and a here, Timmy years

1. At the time of removal was over two old. her care exist even in attenuated child in his or where the proposed removal relationship. (Foot- the absence of blood from the foster family is to return the omitted). note At least where a child has parents.” child to his natural [Emphasis care as an infant been in foster added.] has never known his natural Ibid. 431 U.S. 2111. S.Ct. continuously for several has remained Thus, I think it can confidently be stated years par- in the care of the same foster if Drummonds’ case were before ents, family it is natural the foster Court instead of the OFFER hold the same in the emo- should case and the provide state law did not child, tional and fulfill life of the foster arrangements elaborate for a due functions, socializing as a natu- same hearing, the foster would have pre- family. (Footnote omitted). ral For this vailed in their claim that they had a consti- reason, cannot dismiss the foster fam- we tutionally protected liberty interest. ily as a mere collection of unrelated indi- Village viduals. Cf. of Belle Terre v. II. “LIBERTY” 'TIMMY’S INTEREST Boraas, S.Ct. (1974).” [Emphasis L.Ed.2d 797 respecting What has been said the liberty added.] Drummonds, course, interest of the ap- Ibid. 431 plies, possibly even more cogently, Following language, point- the Court case of the small child whose entire life will up the distinctions between the foster large be affected in degree by or small his family and the family, particularly natural being away taken from the only parents he light of the fact that the family foster Again, has known since his birth. I refer to a creation of statute and the Court conclud- the language of the Court in OFFER: by saying: ed this discussion “At least where a child has been case, “In recognition this limited infant, in foster care as an has never family by accorded to the foster the New known his parents, natural and has re- York statutes and the contracts executed continuously years mained for several in argue against any foster parents, the care of the same foster [all but the most limited constitutional ‘liber- perfectly of which describes it Timmy] ty’.” [Emphasis added.] family natural the foster that should hold posture The Court then discussed in the same emotional life of being the OFFER case as a contest between child, the foster and fulfill the same so- parent foster and the natural of a cializing family. functions as a natural child. The then said: omitted).” (Footnote 52 thing say “It is one that individuals Court, In footnote after speaking of may acquire liberty against a interest dispute as to the validity “psycho- arbitrary governmental interference in logical parent” theory stated: family-like into which associations “But this case turns disput- not on the entered, they freely are even the ab- validity any particular psychological law biological sence of connection or state theory, legal but on the consequences of relationship. It recognition of the undisputed fact that the emotional quite say may acquire another to that one parent ties between foster and foster another’s such an interest in the face of close, many quite child are in cases constitutionally recognized liberty inter- undoubtedly in some as close as those relationship, est that derives from blood existing biological families.” [Empha- sanction, state law and basic human sis added.] parent has interest the foster —an Ibid. S.Ct. 2110. recognized by contract from the outset. Moreover, liberty might Whatever interest other- Timmy’s case does not rest en- family wise in the as an insti- tirely my understanding exist foster on of what substantially tution that interest must be Court would do if faced with the Timmy. ap- presented by Timmy protectable issue precise has interest. The that Tim- agree question the defendants pears that whether this interest can be taken State, its process rights. due my away has from him the sort of proceedings brief, here stated: had is discussed below. recognizes the exist- Department

“The rights specifically of children’s ence III. WHAT —and PROCESS IS DUE? process due Timmy had recognizes that ad steps hoc nature of the that final juvenile system.” involved this rights ly led to a committee decision to remove Further, petition for appellees’ in the Timmy from the Drummonds’ custody and rehearing en banc stated: “begin immediately to look for appro an that chil- have conceded “Defendants priate adoptive black is fully home” set out However, rights. have dren panel opinion of this Court at 547 rights completely scope of those (5th 1977). F.2d 835 Cir. As fully disclosed of the nature the Government function opinion, in that in March a “staffing” Thus, affecting the child. where conduct of four caseworkers or supervisors, none of parens patriae acts in its government whom had either seen the Drummonds or protect neglected children and capacity time, Timmy at concluded parte ex through of guardian, the status assumes the Drummonds should be told that agency personnel, the child’s qualified its Timmy was to be taken from their care and are if the state struc- “that it be in Timmy’s best interest designed to accommodate system tures adopted by to be couple.” black Bearing interest.” best the child’s in mind that this decision was made before language, means that the persons it As I read involved had seen the liberty that the concede Drummonds and before defendants the several investi adoptive sys- exists, Georgia gations but studies of the Drummonds as whole, Timmy potential affords to tem, adoptive parents made,2 as a taken were it is obvious, me; which he is entitled and process to seems to the due that Mrs. Dalling analyze is due at er’s effort to at that all the trial what was care, stage temporary his foster of his meant the action taken the staffing is terminations, and their family relationship afterthought, because the only purpose parents’ rights, and final approaching the termination Drummonds was to ex sys- state structures a to plain is that “the them that adoption the child towas be designed accommodate the child’s to removed and tem awarded to black adoptive words, other appellees parents. In I best interest.” comment on this only because long legislature as decides in the decision say procedures that as on whether the fol everything relating provided wisdom that to lowed process its minimal due must welfare and status can necessarily depend upon abandoned child’s when the decision safely Osgood’s left to the uncontrolled and unre- was made. be Miss statement that county of state and em- the question discretion was raised viewable “that if the Drum process re- that all due monds were ployees plan, satisfies not amenable to our would include the action would we quirements. Timmy This move to a black foster that, know, seek to by feeling you which defendants home taken here it would be irrevocably relationship better if we going terminate were to have adopt him has, passages by couple, black to have him in a black above, recognized to there parallel going as that foster home if was to quoted be family, any opportu- length of before biological without time he was free” clearly event, plan” be heard. indicates “our the child to that was that nity of “we by going adopted a concession the state were to him appears by it be have a black again investigations praise to be noted that of the It is here each of resulted in fulsome relationship Drummonds’ with the child.' this was a difficult apparent decision it was felt couple.” It seems that Tim- undisputed testi my’s long range because the best interest must the decision be the following the fi Drummond focus.” mony of Mrs. Dallinger was that Mrs.

nal “consensus” The Drummonds were not at present Mrs. Drummond: “I am to Mr. and said staffing of November 21. physician No very both anxious to you sure that are psychiatrist present. was There is no rec- you and we called happened what has know any testimony ord of or statement by made stands, the decision still you to tell hi any person present, except that we can Timmy will be better off we feel that assume that the documents heretofore re- couple or a black fami adopted by a black to were ferred available to the members of course, ly.” [Emphasis Of added]. group. giv- Drummonds were not Dallinger could have “decision” that Mrs. opportunity present any en an state- made at is the decision referred to evidence, ments or much repre- less to be staffing which I have discussed March by present sented counsel or to witnesses one would claim that suppose I no above. supporting position their nor they giv- were Timmy are entitled if the Drummonds and en any notice of the basis on which the they by all had received it any process course, might decision rest. Of appar- was made. the time decision ent the face of the from documents that no However, findings did not end after the matter of fact were made as to any of the possible grounds the casework- meeting challenging the March between quali- their pro- adoptive The latter fications parents. ers and the Drummonds. It appar- requested a reconsideration. ent from the record tested were at- that no They put by tempting merely were off statements at all times to resist the Timmy’s taken until after removal of Timmy only ground action would be on the by them, terminated explained mother’s had been which was that is that it Septem- plan Juvenile This was done was the for “this type” Court. of child to be ber, meantime, inquiries adopted by parents. follows, and in the several black course, and studies were made caseworkers or that it impossible to tell the basis Depart- made, other officials of the defendant on which the decision was since no ment, merits, findings most of which discussed of fact were made. The trial court con, relationship between pro and of the did not deal with the process due claim Timmy parents.3 Finally, and his foster asserted Timmy’s Drummonds. sep- giving opportu- without the Drummonds an arate claim of the to due was nity having presented, their present and without because he was not separate- ly represented been notified of the standards which the in the trial court. relationship judged, group would be meet- I, course, agree with the conclusion ing employees Department of 19 opinion Court’s that the kind of a hear- called to as to what obtain a “consensus” ing is mandated should be done with in relation to according clause varies particular to the parents. his foster sought interests that are to be report meeting A written of this states in the adverse effect a requirement and paragraph: hearing last governmental its would have on the However, interest involved. one of the group “A vote was taken and it was a principal why reasons I necessary feel it Timmy’s decision that it would not be in my note dissent to this opinion is the con- best interest to leave him in the Drum- clusion stated in the paragraph: final home, begin monds’ and that we would immediately appropriate to look for an the “Given nature of the interest at adoptive Although stake, home. this was inquiry involved, black and the as well as again oped genuine loving family It should be noted that most of these with this child. praise reports extravagant in their of the were See 547 F.2d 835. manner in which the Drummonds had devel-

1217 flexibility terminated, need for overwhelming provided the a summary of the the complexity upon of the evidence this situation and the proposed which deter- made, this Court mination based, decision to be holds that is terminate and af- due was forded an opportunity whatever rendered to review the reports in this case.” medical by agency the state and other evidence in his case may file. He respond also in writing sincerely I believe that statement trivi- and submit additional evidence. Id. process beyond recognition. alizes due 353.6. § decision, the Mathews v. agency state then makes its final 96 Eldridge, determination, by reviewed an prior L.Ed.2d the Court found that its examiner in the Bureau of Disability SSA identification decisions indicated that of the 421(c); Insurance. § U.S.C. CM specific “generally dictates of due 6701(b), (c). If, is usually case, §§ the of three requires consideration distinct fac- accepts agency SSA determina- tors: tion recipient it notifies the in writing, “[F]irst, private interest that will informing him of the reasons for the deci- action; be affected the official second sion, and of right his seek de novo deprivation the risk of an erroneous reconsideration by the state agency. 20 through procedures such 404.907, CFR (1975). 404.909 Upon §§ used, value, if probable any, acceptance SSA, by the benefits are ter- procedural additional or substitute safe minated effective two months after the guards; the Government’s in finally, month in which recovery medical is found terest, including the function involved to have 423(a) occurred. U.S.C. § and the fiscal and administrative burdens (1970 Supp. III). ed. proce or substitute additional If the recipient seeks reconsideration See, requirement dural would entail. by the agency and the determina- e.g., Kelly, supra, 397 Goldberg v. adverse, tion is reviews the SSA re- 263-271, 25 L.Ed.2d consideration determination and notifies 287.” the recipient of the decision. He then case, complaint In that which was the evidentiary has a to an hearing prior to the a disabled worker that termina- before an judge. SSA administrative law Security disability tion of Social benefit 404.917, 20 CFR (1975). 404.927 §§ must payments recipient be afforded an hearing non-adversary, and the SSA opportunity evidentiary hearing, for an represented by counsel. As to all was not Court found that he entitled to prior stages and subsequent of the admin- hearing such a because elaborate however, istrative process, the claimant procedural provisions under the statute and represented by counsel or other regulations, saying: spokesmen. If 404.934. this hearing § regarding recipient’s “Information decision, results in an adverse the claim- also current condition is obtained from request ant is entitled to discretionary DISM, his sources of treatment medical review Appeals Council, the SSA 404.945, is a conflict 353.4. If there between finally may judicial § § obtain provided 405(g); information benefi- review. § U.S.C. CFR 404.951 ciary and that from medical § obtained physician, sources such as his or between Should it be determined at point treatment, agency two sources of benefits, after termination of may arrange for an examination claimant’s disability beyond extended consulting physician. independent Ibid. date of initially established, cessation the agency’s tentative assess- Whenever the worker is pay- entitled retroactive beneficiary’s ment of the condition dif- 423(b); ments. 42 Cf. U.S.C. 404. § § assessment, 404.503, 404.501, fers from his own the benefi- CFR 404.504 §§ If, hand, ciary may is informed benefits be on the other a beneficiary re- judicial later The only to which he is kind of review available any payments ceives entitled, by filing complaint is the the statute in the United to be determined where, as happened States Court in this Secretary attempt the authorizes case, the had only district court before it an specified circum- in recoup these funds documentary the imperfect record and tes- (Footnotes 42 U.S.C. § stances. timony the pro- of several of actors in the omitted).” ceeding undertook to for the speak who 338, 339, at 904-05. at they 19 and to group explain entire what contrast, no statute and there there is By finally in when termi- they had their mind require- cover the regulations that are no family nated known relation- Timmy’s the complied by with which must be ments ship. relationship such as Department before course, prominent Of in dis- the Court’s Tim- Drummonds and enjoyed by the cussion the Mathews case is the kind of in practice, more- In actual my is terminated. by result might harm that the official ac- compare with over, nothing there was tion, together the risk with that such harm margin in the described provision the used, through procedures would occur the tentative assess- agency’s the “whenever together probable with the value of addi- beneficiary’s the condition differs ment procedural safeguards. Here, tional all evi- assessment, beneficiary his own from dence agreement of the case indicated the terminated, may benefits informed a breakup all concerned that of this summary upon evidence provided family experi- unit would be traumatic proposed determination to termi- which Furthermore, ence for the child. whereas based, opportunity an and afforded nate money Mathews case dealt with which reports and other review the medical out, could be recouped if the decision turned nor in case file” was there evidence his erroneous, to be what is dealt with here is resembling the remotely opportu- anything life, the child’s whole for the termination by Supreme nity given, as described govern will undoubtedly Timmy’s whole “he opinion says its which also in Court life, optimistically good, but, if errone- in submit respond writing and additional ous, for harm. evidence.” As to governmental burdens case, as the Supreme the Mathews In granting would result from of minimal due noted, the final determination process, nothing there is in the record that by in agency is then “reviewed examiner indicates that substantial number Disability Bureau of Insurance.” SSA foster actually seek to establish 6701(b), 421(c); (c) (foot- CM § §§ 42 U.S.C. close family relationship with an infant or omitted). If, case, usually the note as is years child of tender and then seek to be- determination, accepts agency SSA come adoptive parents. Any requirement writing informing recipient notifies of due should certainly not extend decision, for the and of beyond him of reasons those who wish to some such have to seek novo reconsideration procedures his de followed if find themselves . . .” 424 with agency. position respect same to a foster [Emphasis child as are the 96 S.Ct. at 904. Drummonds. The adminis- added.] procedures appear trative would thus not to if the recipient is then followed All this present any formidable state burden. reconsideration, appeal a federal seeks Although the court Mathews was deal- hearing an ad- evidentiary before and an ing interest, its property with a I think judge, pointed out law ministrative description prior Court’s contrast, nothing margin. there is apposite efforts to define review, permits any Georgia law that here. Court said: by any tribunal or reconsideration appeal judg- ‘right being to be the “consensus “The heard before or court of official grievous hoc condemned to suffer loss of made this ad committee. ment”

1219 kind, involve the is though may utterly impossible it even determine whether hardships of a criminal con- stigma allegation or not this A true. careful viction, society.’ to our principle basic reading of the documentary and oral testi- McGrath, v. 341 mony Joint Anti-Fascist Comm. gives introduced at the trial me a 624, 646, 123, 168, 95 L.Ed. 71 S.Ct. strong U.S. belief that the decision made by the J., concurring). (1951) (Frankfurter, four or five workers March to tell the requirement of due The fundamental give Drummonds that must up Timmy opportunity to be heard ‘at process is so he can be raised couple black meaningful in a meaningful time and was the one and basis for all of the Manzo, Armstrong v. manner.’ proceedings and the result issued 1187, 1191, 545, 552, 14 L.Ed.2d event, any therefrom. there was no Ordean, See Grannis record, there was no transcript of testimo- 385, 394, 779, 783, 58 L.Ed. ny, there is no indication word (1914).” about other Timmy’s reasons than race went into decision-making or was the took within confines Whatever basis for the final decision. certainly cannot be Department, to have fallen within thought by anyone problem The fact that could not be Probably the any of these definitions. resolved the trial court on the record is that under the aspect worst of the matter it, believe, before as I firmly adds much to here, the Court abso- as announced law my feeling of the necessity having is allowed to the lute and final discretion adequate hearing much more procedure be- Department. disposed fore such issues can be of adminis- tratively. no other situation under our I know of in which the whole future life of a laws What I up point have said to this years gravely tender can be affect- child of meant to indicate that I believe that both uncontrolled discretion of totally Drummonds and have been de- opportunity officials without an for a public liberty right nied a without process, join I in the hearing by those affected. entirely respect question without to the assumption that I am sure underlies the simply race. I add that question when the persons in- opinion of the Court that of whether the Department Family they thought what volved intended to do that, Children’s policy Services has a if in the circum- for the best of the child available, only parents may black adopt stances, today the law we announce but black or mixed-race children is still unre- deny persons equally relief to affect- deficiency pro- solved because of the strong showing could be though ed even ceedings cry then the facts out for a differ- acting had done so persons made that hearing ent kind of before the administra- venally, or from definite racial capriciously, body. tive necessary This is in order that bias, opinion says pro- that the because the review, proper there can be a if not admin- the result in Tim- ceedings produced state, istratively within the then in the fed- the re- adequate satisfy case were my’s eral court cognizable. where such issues are process. of due quirements I would adhere to the mandate issued following opinion panel of this Court. QUESTION

IV. THE RACIAL alleged the action of complaint removing Timmy from the defendants motivated

custody of the Drummonds was it done grounds, on racial that is was

solely part to a that black or black

pursuant policy adoption

children could not be great couple. white One

with a here is the fact proceeding

defects in the

Case Details

Case Name: Robert George Drummond and Mildred Pauline Drummond v. Fulton County Department of Family & Children's Services

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 28, 1977

Citation: 563 F.2d 1200

Docket Number: 76-1888

Court Abbreviation: 5th Cir.