June 23, 2019

Tenth Circuit: Preadoptive Parents May Possess Liberty Interest in Familial Association

The Tenth Circuit issued its opinion in Elwell v. Byers on Wednesday, November 14, 2012.

The Elwells had been foster parents to T.S. since he was three months old and were in the process of adopting him. After receiving a report that Ms. Elwell had emotionally abused a second foster child, the state department of Social and Rehabilitative Services (SRS) decided to remove that child and terminate the Elwell’s foster care license. Officials then removed T.S. from the Elwell’s home with no prior notice.

A state court found that SRS should have notified the Elwells prior to the removal but did not consider returning T.S. to the Elwells until he had spent a year in another placement. After the state court refused to order the return of T.S. because of the disruption it would cause him, the Elwells filed a 42 U.S.C. § 1983 action against two SRS employees. The employees claimed qualified immunity and the district court granted summary judgment on a substantive due process claim, but denied it on a procedural due process claim.

Kansas law required 30 days notice before a foster child such as T.S. could be removed from his placement and provided for a court hearing at the foster parents’ request. The Tenth Circuit held that because this law mandated procedures, not outcomes, it did not convey a protected liberty interest to the Elwells.

The court did, however, find the Elwells had a protected liberty interest in familial association with T.S. based on the Due Process Clause of the Fourteenth Amendment. While typical foster parents do not possess such an interest, the fact that T.S. had been cared for nearly his entire life by the Elwells and that they were close to adopting him made them closer to being adoptive parents than foster parents. The court also found the Elwell’s constitutional rights were violated by T.S.’s removal without advance notice. Because no other Tenth Circuit or Supreme Court case had held that preadoptive parents have a liberty interest, the right was not clearly established, so qualified immunity applied. The court reversed the district court’s denial of summary judgment for the defendants.