Petition for Writ of Certiorari — Sheila Mikel, Petitioner v. Jennifer Nichols, et al.

No. _______

In the Supreme Court of the United States

__________________

SHEILA MIKEL,

v.

Petitioner,

JENNIFER NICHOLS, ET AL.,

Repondents.

___________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

___________________

PETITION FOR A WRIT OF CERTIORARI

___________________

W. Neil Thomas, III

Counsel of Record

Michael M. Thomas

Thomas & Thomas

6148 Lee Highway

Suite 115 One Park Pl.

Chattanooga, TN 37421

(423) 910-9100

WNthomas@twtlawfirm.com

George T. Lewis

Baker, Donelson,

Bearman, Caldwell &

Berkowitz, P.C.

165 Madison Avenue

Suite 2000

Memphis, TN 38103

(901) 526-2000

Counsel for Petitioner

i

QUESTION PRESENTED

Whether a pre-adoptive foster mother has a

constitutionally protected liberty interest right to

procedural due process in the removal of her foster

girls, where the parental rights of the biological

parents have been terminated, where the foster

mother has been the resident parent for eighteen

months, where the adoption papers were submitted

for approval and where the foster mother has been

afforded no proper notice of removal and no hearing in

connection with the removal.

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioner, Sheila Mikel, was the appellant in

the Court of Appeals and is the plaintiff in the

underlying action.

Respondents, Jennifer Nichols, Commissioner

of the Department of Children’s Services, the

Department of Children’s Services and Omni Visions,

Inc., were appellees in the Court of Appeals and are

defendants in the underlying action.

Pursuant to this Court’s Rule 29.6 of the

Federal Rules of Civil Procedure, Petitioner states

that no disclosure is required.

iii

STATEMENT OF RELATED PROCEEDINGS

There are no proceedings directly related to this

petition.

iv

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING AND RULE 29.6

STATEMENT ..............................................................ii

STATEMENT OF RELATED PROCEEDINGS ....... iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ....................................... vi

PETITION FOR A WRIT OF CERTIORARI.............. 1

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 3

CONSTITUTIONAL PROVISION INVOLVED ........ 3

STATEMENT OF THE CASE .................................... 4

I.

Background ..................................................... 4

II.

This Lawsuit ................................................... 6

III.

The Sixth Circuit Decision. ......................... 7

REASONS FOR GRANTING THE PETITION.......... 9

I.

The Sixth Circuit Decision Creates a Split of

Authority With The 10th Circuit and 2d Circuit. . 10

A. The 10th Circuit Decision ............................. 10

B.

The 2d Circuit Decision ............................ 11

II. This Case Gives This Court An Opportunity

to Complete the Analysis Begun But Not Finished

in OFFER............................................................... 12

v

III.

This Case Presents a Question of

Exceptional Importance That Will Arise

Frequently. ............................................................ 14

CONCLUSION .......................................................... 15

APPENDIX

Appendix A: Opinion and Judgment of the United

States Court of Appeals for the Sixth

Circuit.

(January 19, 2023) ........................ App. 1

Appendix B: Memorandum of Petitioner, Sheila

Mikel, in the United States District

Court for the Eastern District of

Tennessee at Chattanooga

(March 31, 2022) ......................... App. 20

Appendix C: Complaint filed on behalf of Petitioner,

Sheila Mikel, in the United States

District Court for the Eastern District of

Tennessee at Chattanooga

(December 10, 2020).................... App. 43

Appendix D: The AFCARS Report

U.S. Department of Human Services,

Administration for Children and

Families, Administration on Children,

Youth and Families, Children’s Bureau

https://www.acf.hhs.gov/cb

Preliminary FY 2021 Estimates as of

June 28, 2022 - No. 29................. App. 59

vi

TABLE OF AUTHORITIES

CASES

Dobbs v. Jackson Women’s Health Organization,

597 U.S. ___, 44 S. Ct. 2228 (2022) ...................... 12

Drummond v. Fulton County Department of Family

& Children’s Services, 563 F. 2d 1200 (5th Cir.

1977)....................................................................... 13

Elwell v. Byers,

699 F.3d 1208 (10th Cir. 2012) ..... 1, 8, 9, 10, 11, 13

Renfro v. Cuyahoga County Department of Human

Services, 884 F.2d 943 (6th Cir. 1981) ............ 1, 2, 8

Rivera v. Marcus,

696 F.2d 1016 (2d Cir. 1982) ................... 1, 9, 11, 12

Rodriguez v. McLoughlin,

214 F.3d 328 (2d Cir. 2000) ................................... 12

Smith v. Org. of Foster Families for Equality

and Reform,

431 U.S. 816 (1977) ............... 1, 2, 7, 8, 9, 11, 12, 13

Spielman v. Hildebrand,

873 F.3d 1377 (10th Cir. 1989) ............................. 10

Zak v. Pilla,

698 F.2d 800 (6th Cir. 1982) ................................... 2

STATUTES, RULES, CONSTITUTIONAL

PROVISIONS

28 U.S.C. §1254(1) ....................................................... 3

Rule 12(b)(6) of the Federal Rules of Civil Procedure

……………………………………………………………1, 4

U.S. Const. amend. XIV .......................................... 3, 7

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully seek a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Sixth Circuit.

INTRODUCTION

This action arises out of the removal of two girls

from their pre-adoptive foster mother, Shelia Mikel,

without proper notice and without a hearing on the

merits of the removal. An appeal then proceeded

through the Tennessee Courts which did not consider

the constitutional issues raised here. This action was

then filed in the United States District Court for the

Eastern District of Tennessee, and a motion to dismiss

the complaint under Rule 12(b)(6) of the Federal Rules

of Civil Procedure was granted. A panel of the Sixth

Circuit affirmed the dismissal of the case by the

District Court and held that a pre-adoptive foster

mother possessed no constitutional rights.

This case presents an opportunity for this Court

to consider a circuit split between the decision of the

6th Circuit and decisions of the 10th Circuit in Elwell

v. Byers, 699 F.3d 1208 (10th Cir. 2012), and of the 2d

Circuit in Rivera v. Marcus, 696 F.2d 1016 (2d Cir.

1982), and to revisit its prior decision in Smith v. Org.

of Foster Families for Equality and Reform, 431 U.S.

816, 846-847 (1977) (hereinafter OFFER).

In considering the constitutional issues raised,

the Sixth Circuit decision stated that it was adhering

to its prior decisions in Renfro v. Cuyahoga County

2

Department of Human Services, 884 F.2d 943 (6th Cir.

1981), and Zak v. Pilla, 698 F.2d 800 (6th Cir. 1982)

which considered OFFER, and which stated that a

parent’s right to a constitutional guarantee of due

process does not exist until the adoption process is

complete.

This Court’s review is warranted for at least

three reasons.

First, the Sixth Circuit decision is in conflict

with decisions of the 10th Circuit and of the 2d Circuit.

Second, the reasoning expressed in OFFER for

not reaching the constitutional issue presented here

are not present. This case involves a pre-adoptive

foster parent, where the rights of the biological

parents have been terminated and where due process

has clearly been denied.

Third, the question presented is exceptionally

important because pre-adoptive foster parents, who

are looking forward to the adoption of a foster child

after over twelve months with an adoptive child,

extensive training sessions and the establishment of a

relationship with a child in anticipation of adoption,

have a right to know whether they possess a

constitutional liberty interest protection in connection

with the arbitrary removal of that child from their

care.

3

OPINIONS BELOW

The Sixth Circuit opinion (App. A) is not yet

reported but maybe found at 2023 WL 313860 (6th Cir.

2023). The opinion of the United States District Court

for the Eastern District of Tennessee (App. B) is not

reported but may be found at 2022 WL 18396308 (E.

D. Tenn. 2022).

JURISDICTION

The Sixth Circuit filed its opinion on January

19, 2023. The deadline for filing this petition is April

17, 2023. This Court has jurisdiction under 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the United States

Constitution provides:

“No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law . . .”

Amendment XIV, Section 1.

4

STATEMENT OF THE CASE

I.

Background

The facts in this case are taken from the

complaint filed on December 10, 2020, against the

Commissioner of the Department of Children’s

Services of the State of Tennessee, the Department of

Children’s Services (“DCS”) and Omni Visions, Inc.

Since this action was before the district court on a

motion to dismiss the complaint pursuant to Rule

12(b)(6)

the following facts may be taken as

established. (Complaint, App. C)

On July 1, 2016, Sheila Mikel was approved as

a pre-adoptive foster parent, meaning that at the time

of placement of the two girls in question she was preapproved for their adoption. (Id., ¶9) 1 Sheila had been

providing therapy to the girls because of the sexual

abuse by their father and his friends. Because DCS

had been experiencing problems with their placement,

Sheila was asked to adopt them, and she agreed. (¶10)

Prior to that date the biological rights of the parents

of the girls had been terminated, and their custody

was awarded to the State of Tennessee by the Circuit

Court of Bradley County, Tennessee. (¶8) After the

approval of Sheila as a pre-adoptive mother, custody

was transferred to her. (¶10)

During the period from July 1, 2016, to

December 7, 2017, Mikel nurtured the girls. She sent

them to a private school where she lived (¶20). They

1 References in the form “¶__” are to the Complaint, App. C.

5

were doing well in school and recovering from the

trauma of their father (¶11).

In the summer of 2017 Sheila experienced what

she believed to be unusual behavior with one of the

girls. As a result, she sought the advice of a

psychiatrist who had been treating one of them with

the approval of DCS. That psychiatrist diagnosed one

of the girls with a syndrome known as Dissociative

Identity Disorder (“DID”). DCS then accused Sheila,

as a mother, of providing therapy for the girls, which

she discontinued. No further complaint was made

regarding her provision of any therapy. Since its

approved therapist had not made this diagnosis,

however, DCS questioned the diagnosis and requested

an independent diagnosis in September of 2017. Such

an independent diagnosis was performed, and the

diagnosis of the psychiatrist was partially confirmed

with a diagnosis of Post-Traumatic Stress Syndrome

with Moderate Dissociation. The Department disagreed that this diagnosis was a diagnosis of DID and

continued to send the girls for therapy with its

approved therapist, John Arias. While the psychiatrist

referred to above who did diagnose one of the girls

with DID was a licensed Doctor, John Arias was not

(¶ 12).

After the girls had resided with Sheila for just

over seventeen months, Sheila submitted for final

approval her adoption papers to Omni Visions, the

adoption agency under whose supervision she had

been parenting the girls and which had been receiving

over $100,000 per year for the girls. Those papers were

submitted on December 4, 2017, and on December 7,

6

2017, the agency, not DCS, prepared a Notice of

Removal of the girls, stating that the girls would be

taken on December 6, 2017, the day before the date of

the Notice of Removal. The girls were taken on that

date without the knowledge of Sheila and with no

hearing or notice of hearing. The girls were taken

without any allegation of physical abuse, which under

regulations of DCS required the girls to be left with

her (¶15).

On December 8, 2017, Sheila appealed from the

Notice of Removal, and on December 13, 2017, without

notice or explanation, the agency closed Sheila’s home

in good standing (¶22).

II.

This Lawsuit

After the filing of her appeal from the Notice of

Removal, a hearing was convened by an Administrative Law Judge, but no hearing on the merits occurred

because the judge found the controversy had been

rendered moot by the closing of her home by the

agency which issued the Notice of Removal, even

though it had been closed in good standing. An appeal

was taken to the Commissioner of the Department of

Human Services, who affirmed the decision of the

hearing officer. From that decision an appeal was

taken to the Chancery Court of Bradley County,

Tennessee, which affirmed the Commissioner, after

which an appeal were taken to the Court of Appeals of

Tennessee, which affirmed the Chancery Court’s

dismissal. The Tennessee Supreme Court declined to

grant an appeal. At no point in this process did any

7

court consider the constitutional issues raised by

Sheila Mikel. (¶¶25-29)

Sheila Mikel then brought suit in the United

States District Court for the Eastern District of

Tennessee, and the Defendants moved to dismiss.

Sheila Mikel responded by asserting that the conduct

of the defendants in removing her children form her

custody was a violation of section 1983 and her right

to due process under the liberty interest protected by

the Fourteenth Amendment.

The district court granted the motion of

defendants to dismiss and held that Mikel was not

entitled to protection under the due process clause.

III.

The Sixth Circuit Decision.

The Sixth Circuit affirmed the decision of the

District Court. After finding that Mikel had standing,

the Court then turned to the merits, which the court

declared were “whether Omni deprived Mikel of

‘liberty’ when it took AK and SK away from her.” (App.

12)

The Sixth Circuit started its analysis by

considering the meaning of “liberty interest” in the

context of the Fourteenth Amendment. Finding the

meaning not to be clear, the court found that in the

context of the facts of this case, “the Supreme Court

has explicitly declined to decide whether foster

parents have liberty interests in their relationship

with foster children,” citing OFFER. (App. 13) The

court then continued that “[w]here the Supreme Court

8

has drawn blurred lines, however, our circuit has

drawn comparatively crisp ones”, citing Renfro v.

Cuyahoga, supra, which did not even consider

OFFER. (App. 15) The court held that under its

decision “Mikel lacked a constitutional liberty interest

in her status as a foster parent” because she “had not

otherwise established a permanent legal relationship

with them.” (App. 13)

The court then distinguished the case from the

10th Circuit relied upon by petitioner, Elwell v. Byers,

supra The court found that Sheila’s status as a preadoptive parent was of no significance. Nor was the

fact that the rights of the biological parents had been

terminated. The Sixth Circuit decision distinguished

Elwell v. Byers, supra, solely on the basis that “Mikel

did not care for the girls for their entire lives, and her

adoption plan did not make it out of the starting gate.”

(App. 15)

The court then affirmed the dismissal by the

district court.

9

REASONS FOR GRANTING THE PETITION

There are three principal reasons for this Court

to grant this petition.

First, there is a conflict between the decisions

in 6th circuit and the 2d and 10th. The 10th Circuit

decision is Elwell v. Byers, supra. The 2d Circuit

decision is Rivera v. Marcus, supra. The 6th Circuit is

this case.

Second, this case presents an opportunity to

resolve the constitutional issue discussed but left

undecided in this Court’s decision in 1977 in OFFER.

In that decision this Court expressed three

reservations for not reaching the due process liberty

interest issue: (1) that the rights of the biological

parents had not been terminated; (2) that the parents

were only contractual, not pre-adoptive, foster

parents; and (3) that New York had provided

procedural due process to the foster parents in the

removal of their children. Each one of those factors is

not present in this case. The rights of the biological

parents have been terminated; Mikel was a preapproved mother for adoption; and procedural due

process was clearly not provided.

Third, this question is exceptionally important

because of the number of foster children and parents

potentially impacted. For the fiscal year 2021 alone,

there were 16,381 pre-adoptive homes, where, as here,

children in a pre-adoptive status could be removed

from their home without the safeguards of procedural

10

due process. (See Report of the Department of Human

Services, App. D.)

I.

The Sixth Circuit Decision Creates a Split

of Authority With The 10th Circuit and 2d

Circuit.

Under the Sixth Circuit decision, a pre-adoptive

foster mother enjoys no constitutional protection to

preclude the arbitrary removal of her children from

her home.

The decision of the Sixth Circuit specifically

holds that unless a foster parent has “come

particularly close to consummating [the] adoption or

“otherwise established a permanent legal relationship

with them,” she possesses no constitutional rights.

(App. 14) No definition of the phrase, “come close” was

provided in the decision.

A. The 10th Circuit Decision

The decision of the 10th Circuit in Elwell v.

Byers, supra, is contrary to the 6th Circuit in this case.

In that case, the foster parents were, as here, preadoptive foster parents. Citing its prior decision in

Spielman v. Hildebrand, 873 F.3d 1377 (10th Cir.

1989), the 10th Circuit pointed out that “the status of

pre-adoptive parents ‘differs significantly’ from that of

the typical foster-care parents, who care for children

on a temporary basis because the objective of the preadoptive placement was to locate a ‘permanent stable

home.” Elwell v. Byers, supra at 1216. The court then

found that the pre-adoptive parents were “not afforded

11

even the most elemental process -notice- before T.S

was removed” and “h[e]ld that the Ewells had a liberty

interest in their relationship with T.S.”, Id., at 1218

pointing to several factors which counseled in favor of

that conclusion. First, they noted that “the parental

rights of the biological parents had been terminated,”

Id. at 1216 noting that this factor was lacking in

OFFER. Second, the court noted that “the Elwells had

cared for T.S. for an extended period of time.” Finally,

the court noted that the Elwells were “very close to

becoming adoptive parents.” Id. at 1217 Here, as in

Elwell v. Byers, supra, Mikel was a pre-adoptive

parent, and although the girls had been with her for

only eighteen months, she had developed a close

relationship with them, considering their past

experiences of severe sexual abuse at the hands of

their father and his friends. Finally, Mikel had

submitted her adoption papers for approval.

B.

The 2d Circuit Decision

The decision of the 2d Circuit in Rivera v.

Marcus, supra, is also contrary to the 6th Circuit

decision. Although the foster parent in that case was

a half-sister of the child, she was also a foster mother,

and the State of Connecticut argued that the rights of

the half-sister should be viewed only as a foster

parent. The court disagreed and held that “custodial

relatives like Mrs. Rivera are entitled to due process

protection when the state decides to remove a

dependent relative.” Id. at 1025. The court did go on

to state that its holding was not in conflict with its

prior decisions which do not afford due process rights

12

to foster parents, but those cases did not involve preadoptive parents.

II.

This

Case Gives

This

Court An

Opportunity to Complete the Analysis

Begun But Not Finished in OFFER.

The only case decided by this Court in

connection with the issue presented in this petition is

OFFER, supra and the issue presented here was

discussed in dictum but not decided. That decision has

created uncertainty concerning the location of the

boundary line of the constitutional protection to be

afforded a foster parent. A decision is needed to bring

about a settlement of the location of that line which

separates protected status from unprotected status.

See Dobbs v. Jackson Women’s Health Organization,

597 U.S. ___,44 S. Ct. 2228 (2022).

Examples of the confusion about the location of

the boundary between due process protection and the

lack of due process protection is found in the decision

of the 6th Circuit itself in this case, where that court

stated that “[w]here the Supreme Court has drawn

blurred lines, however, our circuit has drawn

comparatively crisp ones.” (App. 13)

A number of decisions since OFFER, supra,

have also pointed to the fact that the OFFER decision

did not define the boundary line of constitutional

protection. Rodriguez v. McLoughlin, 214 F.3d 328,

337 (2d Cir. 2000) (“the OFFER court ultimately chose

not to resolve the question of the existence of a liberty

interest”; Rivera v. Marcus, supra at 1024 (“[Courts]

13

in the wake of OFFER have relied on these

distinguishing factors cited in that decision to support

their ruling that foster parents do not possess a

constitutionally protected liberty interest in the

maintenance of the foster family relationship”);

Drummond v. Fulton County Department of Family &

Children’s Services, 563 F.2d 1200, 1206 (5th Cir. 1977)

(“[the liberty interest issue “was placed squarely

before, and discussed by the Supreme Court,” but “it

did not find it necessary to resolve whether such an

interest exists”); and Elwell v. Byers, supra at 1216

“nonetheless the Court indicated that the liberty

interest in family association may extend to foster

parents in certain circumstances.”

A definitive statement as to the location of the

boundary line of constitutional protection for an

adoptive parent is necessary. Is protection afforded

only if an adoption has been completed? If not, where

does the line exist? This case presents the opportunity

for this Court to define the line where constitutional

protection is to be afforded.

Finally, the decision in OFFER, as stated

above, pointed to three factors which impeded the

ability to declare that an adoptive parent in that case

was entitled to procedural due process, and those

factors are not present in this case. The rights of the

biological parents have been terminated; Mikel was a

pre-approved mother for adoption; and procedural due

process was clearly not provided.

14

III.

This Case Presents a Question of

Exceptional Importance That Will Arise

Frequently.

The question presented is exceptionally

important because pre-adoptive foster families should

have a right to expect fair and constitutional

treatment in the removal of children whom they

expect to adopt. The report of the United States

Department of Health and Human Services for the

fiscal year 2021, issued June 28, 2022, shows that

there were 16,381 foster children in pre-adoptive

homes. (App. D) A decision on the issue of whether

pre-adoptive foster parents have constitutional rights

in the removal of their children is necessary to give

them an opportunity to make an informed decision as

to whether they wish to participate in a process where

they would potentially have no constitutional rights if

their children are arbitrarily removed.

That there are over 16,000 children in the

process of pre-adoption, compared with 305,500

children in foster care shows the preferred status of

the children in pre-adoptive care and their expectation

of establishing a meaningful familial relationship

which is closer to fruition than the standard foster

care relationship, especially when considering that

201,297 of the 305,500 children reunify with either

their parents or a foster parent. Pre-adoptive foster

parents should be afforded a right to know whether

they enjoy constitutional protection when they

embark upon their journey to create a new family.

15

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

THOMAS & THOMAS

By: /s/W. Neil Thomas, III, BPR #4536

Counsel of Record

6148 Lee Highway

Suite 115, One Park Place

Chattanooga, TN 37421

(423) 910-9100

wnthomas@twtlawfirm.com

Counsel for Petitioner