Appendix — Drummond v. Fulton County Department of Family & Children's Services

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Supreme Court, U. S.

FILED

MAR 29 1978

IN THE

SUPREME COURT OF THE UNITED SPAMGACL RODAK, JR., CLERK

October Term, 1977

No. 77- , weg

ROBERT GEORGE DRUMMOND and MILDRED PAULINE

DRUMMOND,

Petitioners,

versus

FULTON COUNTY DEPARTMENT OF FAMILY &

CHILDREN'S SERVICES, VALLIE STATON, Direc-

tor, and KAY DALLINGER, Supervisor; DE-

PARTMENT OF HUMAN RESOURCES OF THE STATE

OF GEORGIA, JIM PARHAM, Director, JACK

WATSON, Chairman of the Board,

and TIMOTHY LEE HILL,

Respondents.

APPENDIX TO THE

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

TABLE OF CONTENTS

Page

En Banc Opinion of the Court

of Appeals 1

Panel Opinion of the Court of

Appeals 61

Order Granting Rehearing En

Banc 148

Opinion of the Court of Appeals

: on Injunction Pending Appeal 149

Opinion of the District Court 153

Opinion of the Supreme Court of

| the State of Georgia 157

Fourteenth Amendment of the

Constitution of the United

States, Section 1 179

Explanatory Note Regarding

Statutes 180

Ga. Code §74-409 [repealed] 180

Ga. Code §74-410 [repealed] 180

: Ga. Code §74-411 [repealed] 181

: Ga. Code §74-409 182

Ga. Code §74-410 184

* Ga. Code §53-312 187

Ga. Code §79-103 187

—

“ é —

-asnens Bre eH

et ee

: a

TABLE OF CONTENTS

En Banc Opinion of the Court

of Appeals

Panel Opinion of the Court of

Appeals

Order Granting Rehearing En

Banc

Opinion of the Court of Appeals

on Injunction Pending Appeal

Opinion of the District Court

Opinion of the Supreme Court of

the State of Georgia

Fourteenth Amendment of the

Constitution of the United

States, Section l

Explanatory Note Regarding

Statutes

Ga. Code §74-409 [repealed]

Ga. Code §74-410 [repealed]

Ga. Code §74-411 [repealed]

Ga. Code §74-409

Ga. Code §74-410

Ga. Code §53-312

Ga. Code §79-103

157

179

180

181

182

184

187

[563 F.2d 1200]

Robert George DRUMMOND and

Mildred Pauline Drummond

Plaintiffs-Appellants,

Vv.

FULTON COUNTY DEPARTMENT OF FAMILY

& CHILDREN'S SERVICES, et al.,

Defendants-Appellees.

No. 76-1888.

United States Court of Appeals

Fifth Circuit

Nov. 28, 1977.

xk &

Appeal from the United States Dis-

trict Court for the Northern District of

Georgia.

Before BROWN, Chief Judge, and TUTTLE,

THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH,

GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT,

HILL and FAY, Circuit Judges.

RONEY, Circuit Judge:

Plaintiffs, Robert and Mildred Drum-

mond, a white couple, acted as state-

designated foster parents of a mixed race

child for over two years. When the defen-

dant state adoption agency decided to

remove the child for permanent placement in

another home, plaintiffs commenced this

action under 42 U.S.C.A. §1983. Alleging

denial of their rights under both the

equal protection and the due process clauses

of the Fourteenth Amendment, they sought

preliminary and permanent injunctive relief,

which was denied by the district court.

Although a panel of this Court reversed,

Drummond v. Fulton County Department of

Family & Children's Services, 547 F.2d 835

(Sth Cir. 1977), the full Court finds no

deprivation of constitutional rights and

affirms the dismissal of plaintiffs'

complaint.

Initially, the en banc Court adopts

the discussion, reasoning and result con-

tained in the dissenting opinion to the

panel decision in this matter as the cor-

rect statement of the law in this case.

That opinion is reported in 547 F.2d at

847-861. We further address the issues

here, however, in view of the oral argu-

ment before the full Court, a subsequent

case decided by the United States Supreme

Court, and supplemental briefs filed with

this Court.

The factual background of this dis-

pute is set out in full in Judge Tuttle's

thorough opinion for the panel which con-

sidered this case. 547 F.2d 835-857. A

brief recapitulation will suffice to place

the following discussion in context.

In December 1973 in an emergency sit-

uation, a one-month-old mixed race child

named Timmy was placed for temporary care

in the home of Mr. and Mrs. Drummond by

the Fulton County children's service agency.

Lengthy proceedings were commenced to deter-

mine whether the child should be permanently

removed from his natural mother's custody

and placed for adoption.

Within a year, the Drummonds had be-

come sufficiently attached to Timmy to re-

quest permission to adopt him. The Drummonds

had not signed an agreement that they would

not try to adopt their foster child, as is

common practice with many placement agencies.

Although the level of care provided by them

as foster parents had consistently been

rated excellent, there was an emerging con-

sensus within the defendant child placement

agency charged with Timmy's care that it

would be best to look elsewhere for a per-

manent adoptive home. When this was explained

to the Drummonds in March 1975 they ap-

peared to acquiesce. By August of that

year, however, they had renewed their

request to adopt Timmy.

The child was not legally freed for

‘adoption by the Georgia courts until Sep-

tember 1975. Because this signaled the

end of any attempt to return Timmy to his

natural mother, the agency began a more

focused consideration of what ultimate

placement would be best for Timmy. After a

number of discussions with the Drummonds,

a final decision-making meeting was held

in November 1975 with 19 agency employees

present. Although the Drummonds were not

present at this meeting, caseworkers who

had dealt with them during the past two

years did attend. As a result of that

meeting a final agency decision was made

to remove Timmy from the Drummond home and

to deny the Drummonds' adoption application.

It is clear that the race of the Drummonds

and of Timmy and the racial attitudes of

the parties were given substantial weight

in coming to this conclusion. The agency

employees were also aware that as Timmy grew

Older he would retain the characteristics

eee

of his black father. A few months later

the plaintiffs filed suit.

A hearing on the request for a pre-

liminary injunction was scheduled for

January 23, 1976, nine days after the suit

was begun. During that period some dis-

covery was conducted by the parties. At

the beginning of the hearing, the trial

court consolidated the hearing on the pre-

liminary injunction with a trial on the

merits, pursuant to its discretionary powers

under Fed.R.Civ.P. 65(a) (2).

Although cited as error on appeal,

the consolidation represented a responsible

exercise of judicial discretion in view of

the essentially legal nature of the contest

and the need for prompt action on this case.

See generally 7 Moore's Federal Practice

465.04[4] (2d ed. 1975).

After hearing six witnesses and argu-

ments of counsel the court, by verbal order,

dismissed the complaint on the merits. In

rendering that decision, the court made the

following finding:

It is obvious that race did enter

into the decision of the Depart-

ment ... [I]t appears to the Court

... that the consideration of race

was properly directed to the best

interest of the child and was

not an automatic-type of thing

or of placement, that is, that

all blacks go to black families,

al whites go to white families,

and all mixed children go to

black families, which would be

prohibited.

On appeal counsel was appointed to repre-

sent Timmy's separate interest in this

litigation.

The case as now presented to the en

banc Court formulates four major issues

for resolution: (1) did the action of the

defendant constitute a denial of equal

protection; (2) do the Drummonds have a

protected liberty or property right in

their relationship with Timmy; (3) does

Timmy have such a right; and (4) if such

rights exist, how much procedural protec-

tion is required in order to safeguard

them?

The Drummonds and counsel for Timmy

contend that the state denied them equal

protection of the laws because of the ex-

tent to which race was considered in making

the adoption decision. Although the com-

plaint alleged that race was the sole

determining factor, the district court found

that this was not the case, and the find-

ing was not clearly erroneous. The argu-

ment has thus centered on the question of

whether a state agency, charged with the

responsibility of placing for adoption a

child in its custody, may take into con-

sideration the race of the child and the

race of the prospective adoptive parents

without violating the equal protection

clause of the United States Constitution.

The manner in which race was considered

in this case frames the precise issue be-

fore us. The district court found that

race was not used in an automatic fashion.

The Drummonds' application was not auto-

matically rejected on racial grounds. This

finding may not be disturbed here because

not clearly erroneous. Fed.R.Civ.P. 52(a);

United States v. United States Gypsum Co.,.

333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746

(1948). But can race be taken into account,

perhaps decisively if it is the factor which

tips the balance between two potential

families, where it is not used automatically?

We conclude, as did another court which

grappled with the problem, that “the diffi-

culties inherent in interracial adoption”

justify the consideration of "race as a

0'7

relevant factor in adoption, ..." Compos

v. McKeithen, 341 F.Supp. 264, 266 (E.D.La.

1972) (three-judge court).

In this regard, the Supreme Court has

recently provided some guidance. It appears

that even if government activity has a

racially disproportionate impact, the im-

pact alone does not sustain a claim of

racial discrimination. "Proof of racially

discriminatory intent or purpose is re-

quired to show a violation ...." Arlington

Heights v. Metropolitan Housing Corp., 429

U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.

2d 450 (1977). There has been no sugges-

tion before this Court that the defendants

had any purposes other than to act in the

best interest of the child when it con-

sidered race. Furthermore, the Supreme

Court has recently stated in the sensitive

area of voting apportionment that the con-

sideration of race is not impermissible.

United Jewish Organizations of Williamsburgh,

Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996,

S51 L.Ed.2d 229 (1977). As the plurality

opinion in that case remarks, where race

is considered in a nondiscriminatory fashion

and there is "no racial slur or stigma with

respect to whites or any other race," there

is no discrimination violative of the Four-

teenth Amendment. 430 U.S. at 165, 97 S.Ct.

at 1009.

In concluding that there has been no

denial of equal protection in these circum-

stances, we note the following factors.

First, consideration of race in the

child placement process suggest no racial

slur or stigma in connection with any race.

It is a natural thing for children to be

raised by parents of their same ethnic back-

ground.

Second, no case has been cited to the

Court suggesting that it is impermissible

to consider race in adoption placement.

The only cases which have addressed this

problem indicate that, while the automatic

use of race is barred, the use of race as

one of the factors in making the ultimate

decision is legitimate. In re Adoption of

a Minor, 97 U.S. App. D.C. 99, 101, 228

F.2d 446, 448 (1955); Compos v. McKeithen,

341 F.Supp. 264, 266 (E.D. La. 1972).

Third, the professional literature on

the subject of transracial child placement

stresses the importance of considering the

racial attitudes of potential parents. The

constitutional strictures against racial

discrimination are not mandates to ignore

the accumulated experience of unbiased pro-

fessionals. A couple has noright to adopt

a child it is not equipped to rear, and

according to the professional literature

race bears directly on that inquiry. From

the child's perspective, the consideration

of race is simply another facet of finding

him the best possible home. Rather than

eliminating certain categories of homes

from consideration it avoids the potentially }

tragic possibility of placing a child in a

home with parents who will not be able to :

cope with the child's problems. )

Fourth, in the analogous inquiry over

the permissibility of considering the reli-

gion of would-be adoptive parents, numerous

courts have found no constitutional infirmity.

See generally, Annot. Religion as a Factor

in Adoption, 48 A.L.R.3d 383 (1973). Those

cases make the same distinction as this Court

makes in the racial context. So long as

religion is not an automatic factor, its

consideration as one of a number of factors

is unobjectionable.

10 i

Finally, adoption agencies quite fre-

quently try to place a child where he can

most easily become a normal family member.

The duplication of his natural biological

environment is a part of that program.

Such factors as age, hair color, eye color

and facial features of parents and child

are considered in reaching a decision. This

flows from the belief that a child and

adoptive parents can best adjust to a normal

family relationship if the child is placed

with adoptive parents who could have actually

parented him. To permit consideration of

physical characteristics necessarily car-

ries with it permission to consider racial

characteristics. This Court does not have

the professional expertise to assess the

wisdom of that type of inquiry, but it is

our province to conclude, as we do today,

that the use of race as one of those factors

is not unconstitutional.

II.

In order to make out a claim of depri-

vation of Fourteenth Amendment due process

rights a plaintiff must demonstrate first,

that he had been deprived of liberty or

property in the constitutional sense, and

second, that the procedure used to deprive

him of that interest was constitutionally

deficient. Board of Regents v. Roth, 408

U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548

(1972).

The Drummonds assert two possible

constitutional liberty and property inter-

ests. The first involves a concept which

plaintiffs have denominated the "“psycho-

logical family"; the second, a stigma to

their reputation alleged to accrue upon

the rejection by the agency of their ap-

plication to adopt Timmy.

Plaintiffs maintain that during the

period Timmy lived with them mutual

feelings of love and dependence developed

which are analogous to those found in most

biological families. By so characterizing

their home situation they seek to come

within the protection which courts have

afforded to the family unit. They assert

that their relationship to Timmy is part

of the familial right to privacy which is

a protected interest under the Fourteenth

Amendment. See, e.g., Griswold v. Connec-

ticut, 381 U.S. 479, 485, 85 S.Ct. 1678,

14 L.Ed.2d 510 (1965). As the "psychological

parents" of Timmy, they claim entitlement

to the parental rights referred to in

numerous decisions. See, e.g. Wisconsin

v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32

L.Ed.2da 15 (1972); Stanley v. Illinois,

405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d

551 (1972); Pierce v. Society of Sisters,

268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070

(1925).

The argument that foster parents pos~

sess such a protected interest was placed

squarely before, and discussed by, the

Supreme Court in its recent decision in

Smith v. Organization of Foster Families

for Equality & Reform, U.S. _, 97

S.Ct. 2094, 53 L.Ed.2d 14 (1977) [herein-

after OFFER]. Although the Supreme Court

did not find it necessary to resolve

whether such an interest exists, Justice

Brennan's discussion of that claim is help-

ful to our analysis. He first considered

the elements which have traditionally been

thought to define the concept of "family."

Of course, the Court recognized that "the

importance of the familial relationship,

to the individuals involved and to the

society, stems from the emotional attach-

ments that derive from the intimacy of

daily association." Nonetheless, the

Court then noted several differences between

foster and natural families, particularly

the fact that the foster parent relation-

ship has its genesis in state law, unlike

the biological relationship, and that with

foster parents there is often a natural

parent seeking to assert a competing liberty

interest.

We conclude that there is no such con-

stitutionally protected interest in the

context of this case. An understanding of

the role of the foster parent in a child

placement helps make this conclusion plain.

In the search for adoptive parents, thorough

investigations are made so that long range

considerations may be given substantial

weight. Ga.Code Ann. §§ 74-409, 74-410

(Supp. 1976). Potential adoptive parents

are evaluated forward in the full family

context through a child's adulthood, marriage,

offspring, and backward to the "adoptive"

grandparents, uncles, aunts, and cousins.

The attitudes of other family members are

examined. Inshort, the goal is to dupli-

cate the relationship that most persons have

with their natural parents during their

entire lives.

The Georgia Department of Human Re-

sources has promulgated an Adoption Services

Manual which sets forth the philosophy it

uses in finding adoptive parents. The

manual states:

Adoption services are focused on

meeting the needs of children by

securing for them permanent fami-

lies. Some children who need

parents are infants; many are older

children; some have physical, in-

tellectual and emotional handicaps;

some are children of minority groups;

others are children of mixed heri-

tage. A permanent home or plan is

the right of every child. Inherent

in the process of finding parents

for children is the recognition

that children have certain basic

needs. The philosophy of the Divi-

sion is to seek for children who

need adoptive homes parents who

are emotionally and physically

capable of assuming the responsibi-

lity of parenthood and who are

flexible enough to accept them for

their intrinsic worth.

During this process in Georgia, chil-

dren are placed in foster homes as an al-

ternative to institutional care for what

is clearly designed as a transitional phase

in the child's life. Ga.Code Ann. §24A-

1403 (1976). Foster parents are thus con-

sidered only on the basis of the quality

of temporary care they can be expected to

provide. Therefore, in the eyes of the

state, which creates the foster relation-

ship, the relationship is considered tem-

porary at the outset and gives rise to no

state created rights in the foster parents.

Drummond v. Fulton County Department of

Family & Children Services, 237 Ga. 449,

228 S.E.2d 839 (1976). As Justice Stewart

remarked in his concurring opinion in

OFFER, "any case where the foster parents

had assumed the emotional role of the

child's natural parents would represent

not a triumph of the system, to be consti-

tutionally safeguarded from state intrusion,

but a failure." —__-U.S. at __- 97 §.Ct.

at 2119.

Here, the only time potential parents

could assert a liberty interest as psycho-

logical parents would be when they had

developed precisely the relationship which

state law warns against [in] the foster context.

As Justice Stewart goes on to say in OFFER,

it is hard to "believe that such breakdowns

of the ... system must be protected or for-

ever frozen in their existence by the Due

Process Clause of the Fourteenth Amendment."

__—*U.S. at __, -97 S.Ct. at 2119. There

is no basis in the Georgia law, which

creates the foster relationship, for a

justifiable expectation that the relation-

ship will be left undisturbed. Cf. Perry

v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694,

33 L.Ed.2d 570 (1972). True liberty rights

do not flow from state laws, which can be

repealed by action of the legislature. Un-

like property rights they have a more stable

source in our notions of intrinsic human

rights. The very fact that the relation-

ship before us is a creatureof state law,

as well as the fact that it has never been

recognized as equivalent to either the

natural family or the adoptive family by

any court, demonstrates that it is not a

protected liberty interest, but an interest

limited by the very laws which create it.

See Bishop v. Wood, 426 U.S. 341, 96 S.Ct.

2074, 48 L.Ed.2d 684 (1976).

It needs noting that this conclusion

does not necessarily control every "foster

family" situation, but only those in which

a child placement agency charged with the

custody of a child, places that child for

temporary care. Other situations will have

to be addressed on a case by case basis.

The plaintiffs assert a second

liberty interest in an attempt to bring

themselves within the ambit of recently

decided due process cases. They claim

that the decision to deny them the right

to adopt Timmy and to remove him from

their home casts a stigma upon their repu-

tation. They assert they satisfy all

eqesaaae which have been judicially

imposed to make out a constitutional

claim for harm to reputation.

In order to implicate such an interest,

plaintiffs must demonstrate first that

they have been denied a right previously

recognized by the state in conjunction

with a defamatory finding about them.

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155,

47 L.Ed.2d 405 (1976). Second, they must

challenge this finding as factually in-

accurate. Codd v. Velger, 429 U.S. 624,

97 S.Ct. 882, 51 L.Ed.2da 92 (1977).

Finally, there must be publication of the

rpeenansaiee outside the context of litiga-

tion. Bishop v. Wood, 426 U.S. 341, 96

S.Ct. 2074, 48 L.Ed.2d 684 (1976). Although

the plaintiffs have tried to satisfy each

of these tests, they have not shown any

liberty interest in “reputation-plus” which

requires procedural due process.

First, the findings about the plain-

tiffs are not those which can be considered

defamatory. In Paul the plaintiff was ac~

cused of being a shoplifter, in Codd of

attempting suicide, and in Bishop of insub-

ordination and “conduct unsuited to an

officer.” These are all allegations which

might have had collateral effects when

those plaintiffs sought employment, and

are allegations which, if false, might have

given rise to state law defamation actions.

Here, the sole finding about the Drummonds

is that in the judgment of the agency, they

are not the best available parents for

Timmy, at least in part for a reason beyond

their control, i.e., their race. Their

treatment of Timmy as foster parents was

spoken of in glowing terms. It would thus

seem there has been no defamation at all.

Second, although the Drummonds chal-

lenge the ultimate conclusion that they

would not be the most suitable adoptive

parents for Timmy, they have not alleged

any particular factual errors in the agency's

information or findings. They are in fact

white, and the agency had an accurate pic-

ture of their age, health, education and

other relevant data. Absent some indication

that they would be able to "clear their

names" at a hearing, they are not invoking

a protected interest. Codd, supra.

Finally, the information upon which

the agency acted was never made public un-

til this litigation. It is normal for fos-

ter children to eventually be removed from

foster homes. Nothing publicly occurred

which would cast any aspersion upon the

Drummonds. Nor could the agency action in

any way affect the Drummonds' attempt to

adopt other children in the future.

Thus we conclude that the Drummonds

have no protectable liberty interest in

this case.

Independent counsel for Timmy ciaims

a liberty right personal to Timmy which he

asserts must be dealt with in constitu-

tional due process terms. The interest

upon which he bases this claim is one which

he has chosen to call the "right to a stable

environment." He argues that a child has

a liberty right not to be moved from home

to home, without a prior hearing, particu-

larly in light of the significant literature

which indicates a traumatic effect of such

moves on young children. Counsel insists

this right exists regardless of whether

the child is in a natural, adoptive or

foster setting and in all other temporary

care situations.

Due to the novelty of this contention,

couns2l cites no authority in support of

such stability interest. He relies on

cases such as In re Gault, 387 U.S. 1, 87

S.Ct. 1428, 18 L.Ed.2d 527 (1967), and

McKeiver v. Pennsylvania, 403 U.S. 528, 91

S.Ct. 1976, 29 U.Ed.2d 647 (1971), for the

proposition that a juvenile's "status" can-

not be changed without procedural due pro-

cess. In those cases, however, a protected

liberty interest was clearly at stake,

since the juveniles involved were facing

deliquency charges which could have resulted

in incarceration. The liberty interest was

thus not an interest in a "stable environ-

ment," or in not being moved around, but in

staying out of jail.

Meachum v. Fano, 427 U.S. 215, 96 S.Ct.

2532, 49 L.Ed.2da 451 (1976), seems to speak

against such an interest as asserted here.

There, a state prisoner was transferred

from a medium security to a maximum secu-

rity facility because he was suspected of

having started a fire in the first prison.

He filed a suit contending that a hearing

was required before the transfer. The

Court, unable to discern the protected

interest involved, denied relief. Notwith-

standing the fact that the transfer was

motivated by specific misconduct on the

part of the prisoner, and had a clearly

punitive purpose and effect, the Court

found no liberty interest. Other recent

cases have led one author to the analysis

that the Supreme Court “has grown increas-

ingly uncomfortable with the concept of

oa ended and vaguely defined due process

interests. It appears to prefer an analysis

that is both more concrete as well as more

restricted in its application." The Supreme

Court, 1975 Term, 90 Harv. L. Rev. 56, 102

(1976). There certainly is no concrete or

well-defined interest shown by the facts

of this case.

| Here, the state's motive in interrupt-

ing Timmy's environment at any point was

always to move him to a place which it con-

sidered superior, over the long range, for

7 Particular needs at the time. ona

Timmy can point to no source for a right in

conflict with that state program, we hold

that Timmy has no liberty interest as

asserted here. This decision by its facts

is necessarily applicable only to an infant

of tender years placed in a foster home for

the length of time and under the circum-

stances here involved. We cannot by deci-

sion here address every conceivable situa-

tion, in some of which a child may have

acquired some interest, as alluded to in

Justice Brennan's opinion in OFFER.

Iil.

In OFFER the Supreme Court assumed

arguendo the existence of a protected

liberty interest, and then proceeded to

test the New York child placement scheme

against the strictures of due process. It

was able to do this because the extensive

procedural safeguards incorporated into the

New York scheme were ultimately found suf-

ficient protection for a liberty interest

of any magnitude. The holding of OFFER,

therefore, is that whatever the strength

of the protected interest, New York provided

adequate safeguards.

This Court is unable to follow that ap-~

proach in this case. It cannot be gain-

said that the Georgia mechanism for removing

a child from a foster home is much more

informal and much less “judicia’" than the

New York model. Of course, OFFER does not

mandate the New York model as constitution-

ally necessary in every case. Nonetheless

we face a scheme which is admittedly less

rigorous in its procedural trappings. Thus,

we have been reguired to face head on and

resolve the question which was the subject

of the Supreme Court's assumption. In doing

so we have concluded that there is no liberty

interest here of full-fledged constitutional

magnitude.

OFFER itself, however, by pretermitting

the question of the existence of a protected

interest, leaves open the possibility that

some such an interest might exist. Although

no liberty interest of substantial magni-

tude is present in the instant situation,

some might find a lesser interest in these

facts deserving of some protection against

arbitrary conduct. We thus consider whether

the procedures afforded in Georgia were ade-

guate to protect whatever interest might be

at stake. The nature of the Georgia pro-

cedures is set out in detail in the panel

opinions reported in 547 F.2d 835. Of

course, "[t]he required degree of procedural

safeguards varies directly with the im-

portance of the private interest affected

and the need for and usefulness of the par-

ticular safeguard in the given circumstances

and inversely with the burden and any other

adverse consequences of affording it."

Friendly, Some Kind of Hearing, 123 U.Pa.

L.Rev. 1267, 1278 (1975). See also Murray's

Lessee v. Hoboken Land & Improvement Co.,

18 How. (59 U.S.) 272, 280, 15 L.Ed. 372

(1855). The Fourteenth Amendment is not

so inflexible as to require a trial-type

hearing for every interest felt worthy of

protection. Nor is the Georgia scheme to

be measured against New York's, since

OFFER in no sense elevates the New York

scheme into a constitutional standard.

IV.

. To the extent there may be some un-

defined interest in this case that could

not be treated by the state arbitrarily,

we note that the process afforded by defen-

dants was sufficient to comport with the

Fourteenth Amendment mandate in connection

with such interest.

It has been frequently stressed that

the requirements of due process are flexible

and vary with time and circumstances.

Morrissey v. Brewer, 408 U.S. 471, 481, 92

209

S.Ct. 2593, 33 L.Ed.2d 484 (1972);

Cafeteria Workers v. McElroy, 367 U.S. 886,

81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Quite

recently, the Supreme Court articulated the

test to be used in determining what process

is due in any particular circumstance.

That test requires consideration of (1) the

private interest at stake; (2) the risk of

erroneous decisions under the present pro-

cedure and the improvement in decision

making which would flow from additional

procedural safeguards; and (3) the govern-

mental interest involved. Mathews v.

Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893,

47 L.Ed.2d 18 (1976).

Applying this test to the case at bar

reveals that the procedures currently in

use strike a constitutionally adequate com-

promise. The private interest here is

presumably the privacy, reputation, and

stability concerns discussed above, the

interest flowing from the love, affection

and concern developed between the Drummonds

and Timmy.

The agency decision in this case to be

made under any procedural format, as all

eet. is "what placement is in the best

interest of the child?" The subsidiary

ING eile DS Li ia a iB Roca RANE ARMY

inquiries which must be addressed in

deciding this question are complex and

numerous. The present procedure is de-

signed to maximize information in answering

these guestions. Several interviews were

had with the foster parents. The child

was observed and tested mentally and medi-

cally. Data was collected about the child's

natural mother and father. Persons trained

in various skills, including psychology

and social work are involved in the pro-

cess. Informality was used to elicit

spontaneous and accurate responses to sen-

sitive inquiries. In sum, the present

system seems designed to obtain the most

accurate answer possible to the ultimate

difficult question and the risk of error

is minimized. There has been no indication

that additional or more accurate informa-

tion could be produced at a more structured

trial-type hearing that would lead to a

superior decision about Timmy's placement.

The reason is obvious. In most hearing

situations, the question to be resolved is

one of fact. Here, however, the ultimate

question is essentially one of policy.

Child placing is an art, not a science that

can be computerized to follow rigid rules.

The “best” home for Timmy is basically a

subjective determination. Should intel-

lectual opportunity be stressed over finan-

cial or athletic opportunity? Is a rural

setting preferable to the city? What age

should his adoptive parents be? In what

order of the social structure? Should a

given child be placed with older siblings,

younger siblings or no siblings? The

questions could go on for pages. These

questions are policy inquiries, not factual

disputes. The utility of a hearing in

such a situation is doubtful. As one com-

mentator has noted,

[t]rials are at their best when

specific adjudicative facts are

in dispute. Trials are seldom

desirable either on legislative

facts or on broad factual issues.

That a plaintiff has a protected

interest at stake does not mean

an he is Fontan to a trial,

cause an issue appropri

trial may be peal ag pipucta lng

K. Davis, Administrative Law of the Seven-

ties §7.00-11 at 276 (1976).

Finally, we consider the Government's

interest. The Government desires, of course,

to act consistently with the child’s best

enetinnee Its additional concern, however,

is to move as efficiently as possible.

Children in foster care are a state ex~

pense, while those in adoptive homes are

generally not. Sometimes extreme haste

is necessary in an emergency to place a

child in foster care. The quicker a child

can be placed in a permanent home, the

better. The presence of additional pro-

cedural safeguards and appeals procedures

would naturally slow the placement process

down to the detriment of both child and

state.

Given the nature of the interests at

stake, and the inquiry involved, as well

as the overwhelming need for flexibility

in this situation and the complexity of

the decision to be made, this Court holds

that whatever process was due was rendered

by the state agency in this case.

AFFIRMED.

JOHN R. BROWN, Chief Judge, concurring:

While I agree with the views expressed

by Judge Roney and concur fully in the re-

sult and opinion, I feel that some comment

is warranted focusing on the practicalities

and realities of the unfortunate situation

which confronts us.

Assuming the Drummonds have any pro-

tectible liberty interest which triggers

the due process clause of the Fourteenth

Amendment, I believe the record in this

case amply demonstrates that, whatever

due process rights the Drummonds had, those

rights were more than adequately safeguarded.

First, the record shows that those

charged with the awesome responsibility of

Timmy's best interest were concerned, sensi-

tive and sincere professionals. / Second,

there can be no doubt that the Drummonds

had notice, at least by March 17, 1975,

that placement outside their home was a

very real possibility. Third, the Drum-

monds were heard. The record establishes

that the Drummonds personally met with

various case workers on at least three

occasions: - aa 10, August 25, and Octo-

ber 4, 1975. Fourth, the notes of the

1. For example, the notes of November

21, 1975, “staffing" at which the final decision

was made to place Tinmy elsewhere, state in

pertinent part: "The discussion lasted approxi-

mately three hours and the group consensus not

to allow the Drummonds to adopt Timmy was care-

fully thought out_and personall painful for all

those present." Plaintiff’ Bhi it 15 ;

emphasis added. iia er

«. See 547 F.2d at 838-46.

Wola Rtas iat! oad Re are a

October 4 “evaluation interview" conducted

by Brenda B. Payne,> Plaintiff's Exhibit

14, recommending that the Drummonds be al-

lowed to adopt Timmy, were given to each

person present at the November 21 staffing

and Mrs. Payne read those notes aloud as

her "recommendation." Payne Deposition at

30. Thus, it cannot be said that the

Drummonds' interests were not represented

at that meeting. While no formal adjudi-

catory hearing was held, what, as a practi-

cal matter, could have been accomplished by

such a hearing in view of what had happened

before the staffing? My answer to this

question is "Nothing."

As to the equal protection contention,

it is abundantly clear to me that no vio-

lation occurred. The notes of Ms. Payne's

“evaluation interview" alone should be dis-

positive on this score. Factors other than

race were indisputably taken into account:

The Drummonds' tendency to be overprotec~

tive, their intellectual capacities, and

their age. Moreover, the "([mJain topics

of discussion" at the November 21 staffing

3. Quoted in full at 547 F.2d at 843-46.

(see Plaintiff's Exhibit 15) numbered

seven: age, health, community setting,

involvement of extended family, parenting

abilities, intellectual environment, and

race.

As to the last of these topics, «not

only do I agree with Judge Roney's conclu-

Sion that race may be considered as "a"

factor in adoptions without violating the

equal protection clause, but I would state

that as a practical matter, it should be

SO considered. Indeed, adoption perscane!

would be blinking at reality if they failed

i consider the race of the adoptive parents

vis-a-vis the child. I would also go so

far as to state that they could give sub-

stantial weight to race as a factor -- in-

cluding consideration of such things as

the geographical location and area attitudes

involved -- without treading dangerously on

equal protection rights. Indeed, agency

personnel, without violating the Fourteenth

Amendment, could expressly declare that the

racial difference between the child and the

"adoptive" parents was the primary reason

for making the child placement decision.

Granted that society and the community

Should not harbor attitudes against inter-

racial mixture, the subject of the foster

home placement and even adoption is the

child, whose life will be affected by

community values and prejudices as they

exist, not what they ought to be.

Lastly, it would be unwise, and to my

mind, an arrogation of power for Federal

Judges to voyage into the supersensitive

realm of state adoption matters. To set

standards as the dissent would require

sounds easy. But inevitably that process

involves policy choices which to go the

heart of the welfare of the child, probably

for the rest of the child's life. On what

do we draw in making these choices? Are

we, as Federal Judges, endowed with suffi-

cient prescience to decide such delicate

issues? We should remind ourselves that

we do not possess the wisdom of Solomon

and that Timmy's adoption is not as bliss-

fully simple as cutting the baby in half.

GODBOLD, Circuit Judge, concurring in

part.

In concur with parts I,

the opinion of the en banc court.

that if there was a protectible interest at

stake the procedures followed by the State

of Georgia were not constitutionally ade-

quate, therefore I am not able to join in

II and III of

I believe

part IV of the opinion.

TUTTLE, Circuit Juige, with whom GOLD-

BERG, Circuit Judge, joins, dissenting:

With deference, I dissent. Believing

as I do that the Supreme Court opinion in

Smith v. Organization of Foster Families

for Equality and Reform, U.S. _, 97

S.Ct. 2094, 53 L.Ed.2d 14 (1977), strongly

Supports the conclusion expressed in the

panel opinion of this Court that both the

Drummonds and Timmy have a "liberty" right

in their foster family relationship which

cannot be destroyed by the state without a

due process hearing, I consider it necessary

to dissent from the Court's opinion.

I. THE “LIBERTY” INTEREST OF THE

DRUMMONDS

The OFFER case arose from a contest

between the natural mother of a child and

foster parents who had had continuous cus-

tody of the child for a considerable period

of time. The New York statute specifically

addressed the problem that was presented

when such a contest arose. As described

in the Court's opinion in OFFER:

"Soc.Serv.L. § 383(2), supra

n. 3, provides that the 'autho-

rized agency placing out or

boarding [a foster] child ...

may in its discretion remove

such child from the home where

placed or boarded.‘ Administra-

tive regulations implement this

provision. The agency is required,

except in emergency, to notify

the foster parents in writing 10

days in advance of any removal.

18 N.Y.C.R.R. § 450.10(a). The

notice advises the foster parents

that if they object to the child's

removal they may request a ‘con-

ference' with the social services

department. Ibid. The department

schedules requested conferences

within 10 days of the receipt of

the request. 18 N.Y.C.R.R. § 450.

10(b). The foster parent may ap-

pear with counsel at the conference,

where he will ‘be advised of the

reasons [for the removal of the

child], and be afforded an oppor-

tunity to submit reasons why the

child should not be removed.' 18

N.Y.C.R.R. §450.10(a). The official

must render a decision in writing

within five days after the close

of the conference, and send notice

of his decision to the foster

parents and the agency. 18 N.Y.C.

R.R. § 450.10(c). The proposed

removal is stayed pending the out- —

come of the conference. 18 N.Y.C.

R.R. § 450.10(d).

If the child is removed after the

conference, the foster parent may

appeal to the department of social

services for a 'fair hearing,” that

is a full adversary administrative

hearing, under Soc.Serv.L. § 400,

the determination of which is sub-

ject to judicial review under N.Y.C.

P.L.R. Art. 78; however, the removal

is not automatically stayed

pending the hearing and judi-

cial review. (Footnotes omitted) ."

Ibid, U.S. _, 97 S.Ct. 2102-03.

Furthermore, the Supreme Court opinion

referred to an additional "“pre-removal pro-

cedural safeguard." The Court said:

"In other words, § 392 pro-

vides a mechanism whereby a

foster parent may obtain pre-

removal judicial review of an

agency's decision to remove a

child who has been in foster

care for 18 months or more."

Ibid,+ _u.s. __, 97 S.Ct. 2104.

Notwithstanding these provisions of

the New York law, the three-judge district

court enjoined a removal in the OFFER case

without additional procedural safeguards,

the court having found those provided by

statute were insufficient.

The Supreme Court reversed the judg-

ment of the three-judge court, ‘not by

Saying that the foster parents did not

have a protectable interest under the

Constitutional, but because it found "that

‘narrower grounds exist to support’ our

reversal.” The Court stated:

"We are persuaded that, even

on the assumption that appellees

1. At the time of removal here, Timmy was

over two years old.

have a protected ‘liberty in-

terest' the district court

erred in holding that the pre-

removal procedures presently

employed by the state are con-

stitutionally defective.”

Ibid. U.S. _, 97 S.Ct. 2111.

In view of the fact that the State of

Georgia has no "preremoval procedures” that

will fit any concept of due process, a

subject that will be discussed later, the

case before us demands that a determination

be made whether there is such protectable

interest in the Drummonds.

As is sometimes the case, I believe

that the concurring opinion, joined in by

the Chief Justice and two of the Justices,

dramatically emphasizes the importance

which a majority of the court attributed

to the question whether a liberty interest

inheres in the relationship between the

foster parents and children who have been

in their care a substantial period of time.

It would have been very simple for the court

to have taken the position adopted by the

concurring Justices as expressed by Mr.

Justice Stewart:

"I cannot understand why the

Court thinks itself obliged to

Gecide these cases on the assump-

tion that either foster parents

or foster children in New York

have some sort of ‘liberty'

interest in the continuation of

their relationship (footnote

omitted). Rather than tiptoeing

around this central issue, I

would squarely hold that the

interests asserted by the ap-

pellees are not of a kind that

the due process clause of the

Fourteenth Amendment protects."

Ibid. U.S. _, 97 S.Ct. 2116-17.

However, rather than follow this

course, the Court took considerable pains

to analyze the assertion of the foster

parents and foster children that they had

a constitutionally protected liberty inter-

est. A careful reading of the opinion in-

dicates to me that but for the existence

of the narrower ground in that case and

but for the fact that the contest before

the court was being waged between foster

parents on the one hand and natural parents

on the other, the court would readily have

determined that such constitutionally pro-

tected liberty interest did exist. In the

first place, the court recognized that,

although "the usual understanding of ‘family'

implies biological relationships, and most

decisions treating the relation between

parent and child have stressed this element"

and that "a biological relationship is not

present in the case of the usual foster

family" nevertheless "biologics ~-elation-

ships are not exclusive determinetion of

the existence of a family." Ibi~. U.S.

, 97 S.Ct. 2109-10. Most telling is

the following language from the Court's

opinion:

"Thus the importance of the

familial relationship, to the

individuals involved and to the

society, stems from the emotional

attachments that derive from the

intimacy of daily association,

and from the role it plays in

‘promot[ing] a way of life'

through the instruction of child-

ren. Wisconsin v. Yoder, 406

U.W. 205, 231-233, 92 S.Ct. 1526,

1541 -42, 32 L.Ed.2d 15 (1972),

as well as from the fact of blood

relationships. No one would

seriously dispute that a deeply

loving and interdependent relation-

ship between an adult and a child

in his or her care may exist even

in the absence of blood relation-

ship. (Footnote omitted). At

least where a child has been placed

in foster case as an infant, has

never known his natural parents

and has remained continuously for

Several years in the care of the

Same foster parents, it is natu-

ral that the foster family should

hold the same place in the emotion-

al life of the foster child, and

fulfill the same socializing func-

tions, as a natural family. (Foot-

note omitted). For this reason,

we cannot dismiss the foster fami-

ly as a mere collection of un-

related individuals. Cf. Village

of Belle Terre v. Boraas, 416 U.S.

1, 94 S.Ct. 1536, 39 L.Ed.2d 797

(1974)." [Emphasis added.]

bid., U.S. _, 97 S.Ct. 2221.

Following this language, the Court

pointed up the distinctions between the

foster family and the natural family, par-

ticularly in light of the fact that the

foster family is a creation of statute and

the Court concluded this discussion by

saying:

"In this case, the limited re-

cognition accorded to the foster

family by the New York statutes

and the contracts executed by

the foster parents argue against

any but the most limited consti-

tutional ‘liberty'.” [Emphasis

added. }

The Court then discussed the posture

of the OFFER case as being a contest be-

tween foster parents and the natural parent

of a child. The Court then said:

"It is one thing to say that

individuals may acquire a liberty

interest against arbitrary govern-

ment interference in the family-

like associations into which they

are freely entered, even in the

absence of biological connection

or state law recognition of the

relationship. It is quite another

to say that one may acquire such

an interest in the face of an-

other's constitutionally recog-

nized liberty interest that de-

rives from blood relationship,

state law sanction, and basic

human right -- an interest the

foster parent has recognized by

contract from the outset. What-

ever liberty interest might other-

wise exist in the foster family

as an institution, that interest

must be substantially attenuated

where the proposed removal from

the foster family is to return

the child to his natural parents."

[Emphasis added. ]

Ibid. _U.S. _, 97 S.Ct. 2111.

Thus, I'think it can confidently be

stated that if the Drummonds' case were

before the Supreme Court instead of the

OFFER case and the state law did not pro-

vide the elaborate arrangements for a due

process hearing, the foster parents would

have prevailed in their claim that they

had a constitutionally protected liberty

interest.

II. TIMMY'S "LIBERTY" INTEREST

What has been said respecting the lib-

erty interest of the Drummonds, of course,

applies, possibly even more cogently, in

the case of the small child whose entire

life will be affected in large or small

degree by his being taken away from the

only parents he has known since his birth.

Again, I refer to the language of the

Court in OFFER:

"At least where a child has

been placed in foster care as an

infant, has never known his

natural parents, and has remained

continuously for several years in

the care of the same foster par-

ents, [all of which perfectly

described Timmy] it is natural

that the foster family should

hold the same place in the emo-

tional life of the foster child,

and fulfill the same socializing

functions as a natuial family.

(Footnote 52 omitted."

In footnote 52, the Court, after speaking

of the dispute as to the validity of a

“psychological parent" theory stated:

"But this case turns not on

the disputed validity of any

particular psychological theory

but on the legal consequences of

the undispute act that the

emotional ties between foster

parent and foster child are in

Many cases quite close, and un-

doubtedly in some as close as

those existing in biological

families." [Emphasis added.]

Ibid. U.S. _, 97 S.Ct. 2110.

Moreover, Timmy's case does not rest

entirely on my understanding of what the

Supreme Court would do if faced with the

precise issue presented by Timmy. It ap-

pears that the defendants agree that Timmy

has due process rights. The State, in its

brief, stated:

"The Department recognizes

the existence of children's

rights -- and specifically

recognizes that Timmy had due

process rights involved in

this juvenile system."

Further, in the appellees’ petition for re-

hearing en banc they stated:

"Defendants have conceded that

children have due process rights.

However, the scope of those

rights is completely a function

of the nature of the Government

conduct affecting the child. Thus,

where a government acts in its

parens patriae capacity to pro-

tect neglected children and assumes

the status of guardian, through

its qualified agency personnel,

the child's rights are protected

if the state structures a system

designed to accommodate the child's

best interest."

As I read this language, it means that

the defendants concede that the liberty

interest exists, but that the Georgia adop-

tive system, taken as a whole, affords to

Timmy the due process to which he is en-

titled and that all the process that Timmy

is due at any stage of his temporary care,

423

his foster family relationship and their

terminations, the termination of parents’

rights, and final adoption is that “the

state structures a system designed to

accommodate the child's best interest."

In other words, appellees say that as long

as the legislature decides in its wisdom

that everything relating to an abandoned

child's welfare and status can safely be

left to the uncontrolled and unreviewable

discretion of state and county employees

that satisfies all due process requirements.

This would include the action taken here

by which the defendants seek to terminate

irrevocably a relationship which the

Supreme Court has, in the passages quoted

above, recognized as parallel to that of

a biological family, without any oppor-

tunity of the child to be heard. In any

event, it appears to be a concession by

the state that Timmy has a protectable

interest. The question whether this

interest can be taken away from him by the

sort of proceedings had here is discussed

below.

III. WHAT PROCESS IS DUE?

The ad hoc nature of the steps that

finally led to a committee decision to

remove Timmy from the Drummonds' custody

and to “begin immediately to look for an

appropriate black adoptive home" is fully

set out in the panel opinion of this Court

at 547 F.2d 835 (Sth Cir. 1977). As fully

disclosed in that opinion, in March 1976,

a “staffing” of four caseworkers or super-

visors, none of whom had either seen the

Drummonds or Timmy at that time, concluded

ex parte that the Drummonds should be told

that Timmy was to be taken from their care

and “that it would be in Timmy's best

interest to be adopted by a black couple.”

Bearing in mind that this decision was

made before any of the persons involved

had seen the Drummonds and before the

several investigations and studies of the

Drummonds as potential adoptive parents

were made, * it is obvious, it seems to me,

that Mrs. Dallinger's effort to analyze

at the trial what was meant by the action

taken at the staffing is an afterthought,

2. It is to be noted again here that each

of the investigations resulted in fulsome praise

of the Drummonds' relationship with the child.

because the only purpose for approaching

the Drummonds was to explain to them that

the child was to be removed and awa ded

to black adoptive parents. I comment on

this only because the decision on whether

the procedures followed provided minimal

due process must necessarily depend upon

when the decision was made. Miss Osgood's

statement that the question was raised

"that if the Drummonds were not amenable

to our plan, would we move Timmy to a

black foster home feeling that, you know,

it would be better if we were going to

have him adopted by a black couple, to have

him in a black foster home if there was

going to be any length of time before he

was free" clearly indicates that "our plan"

was that "we were going to have him adopted

by a black couple." It seems apparent that

this was the decision because the undisputed

testimony of Mrs. Drummond following the

final “consensus” was that Mrs. Dallinger

said to Mr. and Mrs. Drummond: "I am sure

that you are both very anxious to know what

has happened and we called you in to tell

you that the decision still stands, that we

feel that Timmy will be better off adopted

by a black couple or a black family." [Em-

phasis added]. Of course, the only "decision"

that Mrs. Dallinger could have referred

to is the decision made at the March

staffing which I have discussed above.

I suppose no one would claim that if the

Drummonds and Timmy are entitled to any

process at all they had received it by

the time this decision was made.

However, the matter did not end after

the March meeting between the caseworkers

and the Drummonds. The latter protested

and requested a reconsideration. They

were put off by statements that no action

would be taken until after Timmy's mother's

rights had been terminated by the Juvenile

Court. This was done in September, and

in the meantime, several inquiries and

studies were made by caseworkers or other

officials of the defendant Department,

most of which discussed the merits, pro

and con, of the relationship between

Timmy and his foster parents.” Finally,

without giving the Drummonds an opportunity

to be present and without their having been

notified of the standards by which the

relationship would be judged, a grovp

3. It should be noted again that most of

these reports were extravagant in their praise of

the manner in which the Drummonds had developed a

genuine loving family with this child. See 547 F.2d

835.

of fact were made as to any of the possible.

grounds of challenging their qualifications

as adoptive parents. It is apparent from

the record that they were attempting at

all times merely to resist the removal of

meeting of 19 employees of the Department

was called to obtain a “consensus” as to

what should be done with Timmy in relation

to his foster parents.

A written report of this meeting

states in its last paragraph:

"A vote was taken and it was a

group decision that it would not

be in Timmy's best interest to

leave him in the Drummonds' home,

and that we would begin immedia-

tely to look for an appropriate

black adoptive home. Although

this was a difficult decision it

was felt that Timmy's long range

best interest must be the focus."

Timmy on the only ground which was explained

to them, that is that it was the plan for

“this type" of Child to be adopted by black

parents. It follows, of course, that it

is impossible to tell the basis on which

the decision was made, since no findings of

fact were made. The trial court did not

deal with the due process claim asserted

by the Drummonds. Timmy's separate claim

of the right to due process was not pre-

sented, because he was separately represented

The Drummonds were not present at the

staffing of November 21. No physician or

psychiatrist was present. There is no re-

cord of any testimony or statement made in the trial court.

I, of course, agree with the conclusion

in the Court's opinion that the kind of a

hearing that is mandated by the due process

Clause varies according to the particular

interests that are sought to be protected

and the adverse effect a requirement of a

by any person present, except that we can

assume that the documents heretofore re-

ferred to were available to the members of

the group. The Drummonds were not given an

opportunity to present any statements or

evidence, much less to be represented by

counsei or to present witnesses supporting hearing would have on the governmental

their position nor were they given any

notice of the basis on which the decision

might rest. Of course, it is apparent from

the face of the documents that no findings

interest involved. However, one of the

principal reasons why I feel it necessary

to note my dissent to this opinion is the

conclusion stated in the final paragraph:

"Given the nature of the in-

terest at stake, and the inquiry

involved, as well as the over-

whelming need for flexibility in

this situation and the complexity

of the decision to be made, this

Court holds that whatever process

was due was rendered by the state

agency in this case."

I sincerely believe that this statement

trivializes due process beyond recognition.

In the Supreme Court decision, Mathews v.

Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47

L.Ed.2d 18, the Court found that its prior

decisions indicated that indentification

of the specific dictates of due process

“generally requires consideration of three

distinct factors:

"{Flirst, the private interest

that will be affected by the of-

ficial action; second the risk of

an erroneous deprivation of such

interest through the procedures

used, and the probable value, if

any, Of additional or substitute

procedural safeguards; and finally,

the Government's interest, in-

Cluding the function involved and

the fiscal and administrative

burdens that the additional or

substitute procedural require-

ment would entail. See, e.g.,

Goldberg v. Kelly, supra, 397

U.S. 254, at -271, S.Ct.

1011, 25 L.Ed.2d 287."

In that case, which was the complaint

of a disabled worker that prior to the

termination of Social Security disability

benefit payments the recipient must be

afforded an opportunity for an evidentiary

hearing, the Court found that he was not

entitled to such a hearing because of the

elaborate procedural provisions under the

statute and regulations, saying:

“Information regarding the reci-

pient's current condition is also

obtained from his sources of medi-

cal treatment DISM, § 353.4. If

there is a conflict between the

information provided by the bene-

ficiary and that obtained from

medical sources such as his physi-

cian, or between two sources of

treatment, the agency may arrange

for an examination by an independent

consulting physician. Ibid. When-

ever the agency's tentative assess-

ment of the beneficiary's condition

differs from his own assessment,

the beneficiary is informed that

benefits may be terminated, pro-

vided a summary of the evidence

upon which the proposed determina-

tion to terminate is based, and

afforded an opportunity to review

the medical reports and other

evidence in his case file. He

also may respond in writing and

submit additional evidence. Id.

§ 353.6.

The state agency then makes

its final determination, which

is reviewed by an examiner in

the SSA Bureau of Disability In-

surance. 42 U.S.C. § 421(c); CM

§§ 670l1(b), (c). If, as is usually

the case, the SSA accepts the

agency determination it notifies

the recipient in writing, inform-

ing him of the reasons for the

decision, and of his right to

seek de novo reconsideration by

the state agency. 20 CFR §§ 404.-

907, 404.909 (1975). Upon accep-

tance by the SSA, benefits are

terminated effective two months

after the month in which medical

recovery is found to have occurred.

42 U.S.C. § 423(a) (1970 ed. Supp.

III).

If the recipient seeks reconsid-

eration by the state agency and

the determination is adverse, the

SSA reviews the reconsideration

determination and notifies the

recipient of the decision. He

then has a right to an evidentiary

hearing before an SSA administra-

tive law judge. 20 CFR §§ 404.917,

404.927(1975). The hearing is non-

adversary, and the SSA is not

represented by counsel. As to all

prior and subsequent stages of the

administrative process, however,

the claimant may be represented

by counsel or other spokesmen.

§404.934. If this hearing results

in an adverse decision, the clai-

mant is entitled to reqest dis-

cretionary review by the SSA

Appeals Council, § 404.945, and

finally may obtain judicial re-

view. 42 U.S.C. § 405(g); 20 CFR

§ 404.951 (1975).

Should it be determined at any

point after termination of bene-

fits, that the claimant's dis-

ability extended beyond the date

of cessation initially established,

the worker is entitled to retro-

active payments. 42 U.S.C. § 404.

Cf. § 423(b); 20 CFR §§ 404.501,

404.503, 404.504 (1975). If, on

the other hand, a beneficiary

receives any payments to which

he is later determined not to be

entitled, the statute authorizes

the Secretary to attempt to recoup

these funds in specified circun-

stances. 42 U.S.C. §404. (Foot-

notes omitted)." 424 U.S. at 338,

339, 96 S.Ct. at 904-05.

By contrast, there is no statute and

there are no regulations that cover the

requirements which must be complied with

by the Department before a relationship

such as that enjoyed by the Drummonds and

Timmy is terminated. In actual practice,

moreover, there was nothing to compare

with the provision described in the margin

that “whenever the agency's tentative

assessment of the beneficiary's condition

differs from his own assessment, the

beneficiary is informed that benefits may

be terminated, provided a summary of the

evidence upon which the proposed determina-

tion to terminate is based, and afforded an

opportunity to review the medical reports

and other evidence in his case file" nor

was there anything remotely rzsembling the

opportunity given, as described by the

Supreme Court in its opinion which says

“he also may respond in writing and submit

additional evidence.”

In the Mathews case, as the. Supreme

Court noted, the final determination by

the agency is then "reviewed by an ex-

aminer in the SSA Bureau of Disability In-

surance." 42 U.S.C. § 421(c); CM §§ 6701(b),

the case, the SSA accepts the agency deter-

mination, it notifies the recipient in

writing informing him of the reasons for

the decision, and of his right to seek de

novo reconsideration by the state agency

oe” 426 0.8. ot 338, 96 8.Ce. at 904

[Emphasis added. ]

All this is then followed if the reci-

pient seeks reconsideration, by a federal

appeal and an evidentiary hearing before an

administrative law judge, as pointed out

in the margin. In contrast, there is

nothing in the Georgia law that permits

any review, appeal or reconsideration by

any tribunal or official or court of the

"consensus judgment" mede by this ad hoc

committee.

The only kind of judicial review avail-

able is by the filing of a complaint in

the United States Court where, as happened

in this case, the district court had before

it only an imperfect documentary record

and the testimony of several of the actors

in the proceeding who undertook to speak

for the entire group of 19 and to explain

what they had in their mind when they

finally terminated Timmy's only known family

relationship.

Of course, prominent in the Court's

discussion in the Mathews case is the kind

of harm that might result by the official

action, together with the risk that such

harm would occur through the procedures

used, together with the probable value of

additional procedural safeguards. Here,

all evidence of the case indicated that

agreement of all concerned that a breakup

of this family unit would be a traumatic

experience for the child. Furthermore,

"The ‘right to be heard before

being condemned to suffer grie-

which could be recouped if the decision vous loss of any kind, even

though it may not involve the

stigma and hardships of a crimi-

with here is the child's whole life, for nal conviction, is a principle

. ‘ basic to our society.' Joint

the termination will undoubtedly govern Anti-Fascist Comm. v. McGrath,

Timmy's whole life, optimistically for 341 U.S. 123, 168, 71 S.Ct. 624,

646, 95 L.Ed. 817 (1951) (Frank-

further, J., concurring). The

As to the governmental burdens which fundamental requirement of due

process is the opportunity to be

heard ‘at a meaningful time and

whereas the Mathews case dealt with money

turned out to be erroneous, what is dealt

good, but, if erroneous, for harm.

would result from granting of minimal

due process, there is nothing in the record in a meaningful manner.' Armstrong

. . ] umber Vv. Manzo, 380 U.S. 545, 5 ,

that indicates that any substantial n S.Ct. 1187, 1191, 14 ae Ure =

of foster parents seek to actually estab- (1965). See Grannis v. Ordean,

234 U.S. 385, 394, 34 S.Ct. 779,

783, 58 L.Ed. 1363 (1914)."

Whatever took place within the con-

lish a close family relationship with an

infant or child of tender years and then

seek to become adoptive parents. Any

requirement of due process should certainly

not extend beyond those who wish to have

some such procedures followed if they find

fines of the Department, certainly cannot

be thought by anyone to have fallen within

any of these definitions. Probably the worst

aspect of the matter i: that under the law

themselves in the same position with

respect to a foster child as are the Drum-

monds. The administrative procedures would

as announced by the Court here, absolute

and final discretion is allowed to the

Department.

I know of no other situation under our

thus appear not to present any formidable

state burden.

Although the court in Mathews was

laws in which the whole future life of a

child of tender years can be gravely af-

dealing with a property interest, I think fected by the totally uncontrolled discre-

; oer , :

its description of the Supreme Court's prior tion of public officiels without an cppor-

efforts to define due process is apposite tunity for a hearing by those affected. 1

here. The Court said:

56 57

join in the assumption that I am sure

underlies the opinion of the Court tnat

the persons involved intended to do what

-they thought to be for the best of the

child in the circumstances, but the law

we announce today would deny relief to

persons equally affected even though a

strong showing could be made that the

persons acting had done so capriciously,

venally, or from definite racial bias,

because the opinion says that the proceed-

ings which produced the result in Timmy's

case were adequate to satisfy the require-

ments of due process.

IV. THE RACIAL QUESTION

The complaint alleged that the action

of the defendants in removing Timmy from

the custody of the Drummonds was motivated

solely on racial grounds, that is it was

done pursuant to a policy that black or

part black children could not be placed

for adoption with a white couple. One of

the great defects in the proceeding here

is the fact it is utterly impossible to

determine whether or not this allegation

is true. A careful reading of the docu-

mentary and oral testimony introduced at

the trial gives me a strong belief

that the decision made by the four or

five workers in March to tell the Drummonds

that they must give up Timmy so that he

can be raised by a black couple was the

one and only basis for all of the pro-

ceedings and the result that issued there-

from. In any event, there was no record,

there was no transcript of testimony, there

is no indication that any word about other

reasons then Timmy's race went into any

decision-making or was the basis for the

final decision.

The fact that this problem could not

be resolved by the trial court on the

record before it, as I firmly believe, adds

much to my feeling of the necessity of

having a much more adequate hearing pro-

cedure before such issues can be disposed

of administratively.

What I have said up to this point is

meant to indicate that I believe that both

the Drummonds and Timmy have been denied a

liberty right without due process, entirely

without respect to the question of race.

I simply add that when the question of

whether the Department of Family and Child-

ren's Services has a policy that, if avail-

able, only black parents may adopt black or

mixed-race children is still unresolved

because of the deficiency in the pro-

ceedings then the facts cry out for a

different kind of hearing before the ad-

ministrative body. This is necessary in

order that there can be a proper review,

if not administratively within the state,

then in the federal court where such

issues are cognizable.

I would adhere to the mandate issued

following the panel opinion of this Court.

[547 F.2d 835 (1977)]

Robert George DRUMMOND and

Mildred Pauline Drummond

Plaintiffs-Appellants,

Vv.

FULTON COUNTY DEPARTMENT OF FAMILY &

CHILDREN'S SERVICES, et al,

Defendants-Appellees.

No. 76-1888

United States Court of Appeals

Fifth Circuit

Feb. 2, 1977.

Dissenting Opinion Feb. 11, 1977.

Rehearing En Banc Granted

March 28, 1977.

x * ®

TUTTLE, Circuit Judge:

This appeal presents the question

whether the federal courts can give relief

to white foster parents who contend that

they have been unconstitutionally denied by

Georgia state officials the right to adopt

a mixed race child solely on account of race.

Neither the trial court nor this Court has

the desire nor the authority to second-guess

the Department of Family and Children Services

on the fitness or suitability of anyone as

adoptive parents. Our jurisdiction permits us

only to ascertain whether in the adoption

process the state has deprived the plaintiffs

of a protectable interest under the Fourteenth

Amendment without procedural due process or

or has denied them equal protection of the

laws as guaranteed by the Fourteenth Amendment.

I. FACTUAL OUTLINE

The record before us, while very sketchy

because of the fact that the trial court

plainly considered it to be to the best in-

terests of all concerned to keep the hearing

on preliminary and permanent injunction nar-

rowly restricted, + nevertheless discloses the

following facts:

The child, Timothy, known throughout as

Timmy, was born out of wedlock on November

17, 1973 to a white mother by a black father.

After one month in the care of his natural

mother, he was taken into the care of the de-

fendant Fulton County Department of Family

and Children Services under the authority of

Georgia law because of the "unfitness" of the

mother. On December 15, when he was less than

one month old, he was placed in the home of

1. The hearing, by order dated January 14,

1976, was set down for January 23 on a motion for

preliminary injunction. Following abbreviated dis-

covery by interrogatories and depositions, the trial

court on June [sic, Jamiary] 23, when the hearing com

menced, steted that the case would be considered on

the merits. Both parties stated that they had in-

sufficient time, but they may have waived any

objection to the order of consolidation. On appeal

the appellants, plaintiffs below, claim that they

are entitled to a reversal of the order of dis-

missal on the merits because of inadequate notice

and time for preparation for a consolidation under

Rule 65(A) (2) F.R.C.P. In light of the disposition

we make of the case, we need not reach this cor

tention.

Robert and Mildred Drummond, the plaintiffs,

as foster parents. At this time, Mrs. Drummond

was 49 or 50 years old and her husband was

37 or 38 (the record does not show their

birthdates but at the time of the action by

the defendants here complained of, they were

51 and 39 respectively.

For 15 months, until March 10, 1975,

the Drummonds cared for Timmy in their home

as a child of their own in a manner sub-

sequently described by the caseworkers and

supervisors, both foster home and adoption

personnel, as "excellent," "loving," "ex-

tremely competent" so that at that time he

was described by such personnel as "an

extremely bright, highly verbal, outgoing

15-month-old baby boy."

Home visits by foster home caseworkers

were infrequent, but some contact was main-

tained by telephone, especially when the

Drummonds desired to leave town for trips.

Some time late in 1974, it came to the

attention of the then current caseworker

Barbara Osgood, that the Drummonds wished

to adopt Timmy. She had not then seen

Timmy or the Drummonds, but the problem of

the Drummonds* request was submitted to a

"staffing." This was a conference which

included Osgood's supervisor, Mrs. Grape,

Mrs. Dallinger, the adoption supervisor,

and one or two other personnel. It is

apparent that none of these staff people

had seen either Timmy or the Drummonds.

Miss Osgood's description of what oc-

curred at the staffing follows;

“A. Well, it centered around the

fact that we knew the Drummonds

would like to adopt Timmy, and

Miss Grape talked a great deal

of time about she was black and

she talked a great deal of the

time about experiences that she

had known or heard of of black

or mixed race children growing

up in white homes. And she had,

you know, some real feelings

that this was not a good plan to

this type of child, that they

faced too many problems as a re-

sult of that kind of placement.

So after, you know, some dis-

cussion was made about that, the

decision was made for Miss Grape

and Miss Dallinger to talk with

the Drummonds and to try to ex-

press, you know, some of our

concerns about what we felt was

in Timmy's best interest; and,

also, the question was brought

up that if the Drummonds were

not amenable to our plan, we

would move Timmy to a black

foster home feeling that, you

know, it would be better if we

were going to have him adopted

by a black couple, to have him

in a black foster home if there

was going to be any length of

time before he was free.

Q. Was there a decision made at

that staffing that you recall?

Was there a vote taken in any way?

A. No. There was no vote taken.

I think I commented at the time

that it seemed to me that the

decision had already been made.

Q. What do you feel the decision

was?

A. I think the decision was that it

would be in Timmy's best inter-

est to be adopted by a black

couple.” (Emphasis added.)

On March 10, Mrs. Grape and Mrs. Dal-

linger had the Drummonds bring Timmy to

the office to carry out the decision made

at the “staffing." Mr. Drummond testified

that at the conference: "Mrs. Grape said

she thought Timmy should be adopted by a

black family." The following testimony

then followed:

"©.

What did you say when you were

told that Miss Grape, by Miss

Grape, that she thought it would

be best for Timmy to be placed

with a black couple?

THE COURT: Black couple?

MRS. HAMES: Sir?

THE COURT: What did you say?

BY MRS. HAMES:

Black couple. Is that the ter-

minology they used, or black

family or black parents?

Black family, I believe.

What was your response to that?

Well, my wife and myself thought

that we should be able to adopt

Timmy, that we would like to

have him.

All right, Was there anything

said about it being to his ad-

vantage for him to grow up in

the black community?

I think Miss Grape said something

to that effect.

Did you and your wife ever ac-

Mrs.

interview

"Oo.

cept the fact that you couldn't

adopt Timmy, that he had to be

adopted by black parents?

No, we did not.

Did you ever do anything about

it after you were told -- this

March meeting, what did you do

after that, toward adopting

Timmy?

Well, we told them we would like

to adopt him and told the case

worker."

Drummond's testimony as to this

was as follows:

Okay. What did they tell you

about whether they were going to

permit you to adopt him?

They told us that -- Miss Grape

did the talking, and Miss Grape

said that since Timmy was a

mixed child, that she felt, and

she felt that the Department

felt, that Timmy would be better

off raised in a black family.

Did you accept that at that time?

I tried to accept it. But I

could not.

What further steps did you take

to try to adopt Timmy?

6'7

I called and talked with the

case workers and repeatedly told

them that we wanted to adopt

Timmy. And then when Mrs. Os-

good came out to our home, we

told her how much we wanted to

adopt Timmy and would they

please give us another meeting,

that we would try and let them

know how much we wanted Timmy.

Okay. Back up to the March

meeting. Were you told at that

meeting that you were too old to

adopt him?

No.

When did you move to Douglas

County?

Within eight months.

Did anyone ever tell you it

would hurt your chances to adopt

Timmy if you moved to Douglas

County?

No, Ma'am.

Would you have moved to Douglas

County had you known?

No, indeed, had we known.

Are you willing to return to the

City of Atlanta?

We're packing to move back to

Fulton County to the City of Atlanta

now.

Q. In the March meeting, did Miss Dal-

linger or Miss Grape discuss the

community in which they thought

Timmy should live?

A. They told us that they felt that he

would be -- Miss Grape stated that

she felt that he would be better off

raised in a black community."

A memorandum for the files was prepared

by Mrs. Grape as follows:

"On 3/10/75 Mr. and Mrs. Drum-

mond, foster parents, were in the of-

fice with Timothy Hill, foster child.

Nancy Hartzog kept Timothy in the

playroom while Helen Grape and Kay

Dallinger had a personal conference

with Mr. and Mrs. Drummond. The

Drummonds now admit that Timothy is a

mixed race child of Black/White heri-

tage. They did some superficial de-

nial of the idea that this fact would

cause Timothy any problems in remain-

ing in their home. They did not,

however, push for them to be allowed

to adopt Timothy. As a matter of

fact, they stated they could let

Timothy go to a young, energetic,

religious, adoptive couple. They

expressed primary concern that he not

be moved from their home to another

foster home as they believed he would

not receive the quality of care they

are giving him in another foster

home. They feel that separation from

Timothy will tear their hearts out

but that they can do it because it

would be best for Timothy in the long

run. They seem quite accepting when

Ms. Grape and Ms. Dallinger verbal-

ized for them that Timothy would, in

our opinion, make a better adjustment

and have a better chance in life with

a Black couple in the Black community.

We further explained our efforts

to work with the natural mother, the

expected time involved before we

could get either a voluntary release

or be prepared for court action to

terminate parental rights. We said

the mother was not a bad person but a

sad person -- immature not ready for

responsibility. We stated we needed

to make further efforts to rehabili-

tate her before a final decision is

reached. We estimated a minimum of

six months to one year before we will

even know if adoption is the plan for

Timothy. Ms. Dallinger explained

that even the ( ) months more would

be involved in working with him to

fully know Timothy, select the cight

adoptive home, and slowly move Timo-

thy. Ms. Drummond cried in antici-

pation of eventual separation. Both

Mr. and Mrs. Drummond expressed ap-

preciation in knowing the truth.

The truth being 1) we are working

towards adoption for Timothy outside

their home; 2) it may take one to two

years to accomplish this goal; 3) the

rehabilitation of the mother's home

is a slim possibility but still a

possibility; 4) because of the ex-

cellent care the Drummonds have pro-

vided for Timothy, we (the agency)

are more than willing for the Drum-

monds to keep Timothy on a foster

care basis until a permanent plan can

be made if the Drummonds are willing

to keep him under these circumstances.

The Drummonds committed themselves to

giving the child all the love and

care they can give him as foster par-

ents and to eventually helping Timo-

thy to separate from them and move to

a permanent adoptive home. They re-

emphasized that they could ‘love and

let go.'

ADDITIONAL NOTE: We agreed to keep

them informed of any progress that

we make in working with the natural

mother or in court action. Ms. Grape

suggested 11/75 as a good review date

since Timothy will be two years old

that month. Timothy was observed on

this date to be an extremely bright,

highly verbal, outgoing, 15 month old

baby boy. His complexion is light

Olive. He has a definite Afro and is

a physically appealing mixed race

child." (Emphasis in original.)

A letter was then sent to the Drum-

monds which is copied here verbatim:

"March 17, 1975

Mr. and Mrs. Robert Drummond

2390 Fabin Street, N.W.

Atlanta, Georgia 30318

Dear Mr. and Mrs. Drummond:

This is to confirm with you our

understandings and agreements during

our office conference on 3/10/75. As

you will recall, on this date we ex-

plained our efforts to work with

Timothy's natural mother and the

time involved before we could get

72.

either a voluntary release or be pre-

pared for court action to terminate

parental rights. However, we also

explained that we would continue fur-

ther efforts to rehabilitate Timo-

thy's natural mother before a final

decision was made. The estimated

time span would be approximately six

months to one year before this de-

cision would be reached. If adoption

becomes legally possible, months will

be involved in working with you, ful-

ly knowing Timothy, selecting the

right adoptive home, and slowing mov-

ing Timothy into a permanent adoptive

home.

Both of you expressed apprecia-

tion in knowing specific steps that

the department would take in working

with Timothy. These steps are:

1) we are working toward adop-

tion for Timothy outside your

home;

2) it may take one to two years

to accomplish this goal;

3) the rehabilitation of the mo-

ther's home is a slim possibili-

ty but still a possibility;

4) because of the excellent care

you have provided for Timothy,

the agency is happy for you to

keep Timothy on a foster care

basis until a permanent plan

can be made, if you are willing

to keep him under these circum-

stances, and you stated in our

meeting that you wanted to keep

him until a permanent plan could

be made.

You committed yourselves to giv-

ing Timothy all the love and care

that you could give him as his foster

parents and also eventually to help-

ing Timothy to separate from you and

move into a permanent adoptive home.

Thank you for your love and concern

for this precious child.

Sincerely,

Ms. Kay Dallinger

Casework Superivsor

III -- Adoptions

Mrs. Helen Grape

Casework Supervisor

III -- Foster Care"

Mrs. Drummond testified that they

continued to make known to their case-

worker thereafter their desire to adopt

Timmy. This is confirmed by Mrs. Osgood,

their caseworker, who testified:

"A.

After I read this [the memoran-

dum of March 11, supra] I

thought, well, that perhaps

things had been resolved with

the Drummonds and that it ap-

peared that they were in agree-

ment with us. So I went out to

do the foster home re-evaluation

interview thinking this was de-

cided and that they would have,

you know, have been in agreement

with this plan for Timmy. I was

really surprised when I got out

there, because to hear their in-

terpretation of it, that they

were not in agreement with it at

all.

And, you know, I don't know

whether it is because they had

changed their minds in the in-

terim period or whether we had

heard what we wanted to hear in

the interview, but at any rate,

they certainly were not in agree-

ment with what this states when

I went out there.

What did they want to do when

you went out there? What was

their opinion? What was their

approach to you?

A. Well, they had stated that they

had been talking with their fos-

ter care worker who was Mollie

Bartlett at that time and were

requesting an interview with the

adoption staff to, again, state

their desire to adopt Timmy.

Mrs. Drummond said she had

not heard anything about it, and

so I told her after I wrote up

my evaluation that I would write

a memo to Mrs. Dallinger bring-

ing it to her attention that the

Drummonds were still interested.

I did that soon after the evalu-

ation.

Q. Go ahead.

A. I received a reply stating that

the Drummonds would be given an

interview after Timmy's termina-

tion hearing."

On August 15 Miss Mollie Bartlett

sion of the conference the Drummonds

were planning to care for Timmy until

he was freed for adoption and to help

him adjust to the adoptive home when

adoption occurred. For a short time

they seemed to fully accept the pre-

mise that Timmy would be better

placed in a black home.

Today, after nearly six months,

the Drummonds are requesting an op-

portunity to be reconsidered as

adoptive parents for Timmy. They

have no reservations about their ac-

ceptance of a mixed race child. Mrs.

Drummond's health had once seemed

questionable, but her doctor found

gallstones and as soon as she has

surgery, she foresees no further

health problems.”

Mrs. Dallinger replied:

"In response to your memo regard-

ing the Drummonds' renewed interest in

adopting Timmy, I have learned that

the termination petition has been

wrote a memorandum to Mrs. Dallinger as filed and the hearing set for 9/25/75

follows: at 9:30. Under the circumstances the

"On 3-10-75, you met with Mrs.

Grape and the Robert Drummonds, Tim-

Drummonds should bring Timmy to the

office for the hearing, and you should

my's foster family. At the conclu- bring him to the juvenile court.

76 77

I personally feel that the

Drummonds are back into their earlier

denial pattern. The approach I recom-

mend for you is to stall with no

encouragement. Example ... "No one

can be considered for the adoption

of Timmy until he is freed. Adoption

staff would have to carefully examine

any possible home for Timmy, particu-

larly a white home such as yours. I

don't want to encourage you. The best

thing for you to do is think about

this some more and discuss this with

the adoption staff. If and when he

is freed, I have advised adoption that

you have changed your mind.'

Thank you for alerting us to the

situation." (Emphasis in original).

Thereafter, about August 25, Mrs. Os-

good made the re-evaluation as a result of

which she described the foster parents in

the following terms:

"The foster parents provide ex-

cellent care. They are unusually at-

tentive to the child's medical and

emotional needs and feel as if they

are the ‘natural’ family."

Under the heading on the evaluation form

"Particular Strength of Home," Mrs. Osgood

wrote"

"The Drummonds have accepted a

mixed race child and have handled

the attendant problems well. They

are a very loving, warm family."

Finally, she made the following recommenda-

tion for the Drummonds as foster parents:

"I recommend this home for a child of either

sex, age 0 to 3."

This re-evaluation report was accompa-

nied by a memorandum again addressed to

Mrs. Dallinger:

"I recently did the foster home

re-evaluation on the above named

couple. As you will recall on March

ll, 1975, you'iand Helen Grape inter-

viewed Mr. and Mrs. Drummond regarding

their expressed interest in adopting

Timmy. For your convenience a copy

of the notes from thatconference are

attached.

I spoke with Mr. and Mrs. Drummond

for over two hours and during this time

I also had a chance to observe Timmy.

As a result of my conversation I have

the distinct impression that the

Drummonds did not adequately express

their feelings in the March llth

interview. In the foster home re-

evaluation they stated unequivocally

and emphatically their desire to

adopt Timmy. They rejected the no-

tion that he would make a better ad-

justment in a Black home by pointing

out that Timmy has has always been

around White people and this has been

incorporated into his self-concept.

They do not understand why we would

remove a child from a home where he

has been since birth and replace him

because we believe he will have a

better 'chance' in the Black community.

The Drummonds expressed their

intention to give Timmy every oppor-

tunity possible to develop as a human

being, regardless of race. I talked

with them about community acceptance

and the possibility of Timmy dating a

Black girl when he gets older. The

Drummonds acknowledged that Timmy

would be ‘'different,' but felt he

would have problems in the Black com-

munity also. They noted that Timmy

would make his own decisions as to who

he would date and they would have no

objections to his choice. They pointed

out that they make no secret of Timmy's

Black heritage and felt that they

would deal forthrightly with Timmy on

this subject.

Timmy is an exceptionally well-

adjusted child. There is no question

that he is the center of this house-

hold. He talks in sentences, counts

to ten, and shows off for visitors by

strumming the guitar and singing

gospel songs. The fact that he is

bright, active, and friendly is a

tribute to the excellent care he is

receiving from these parents.

Because of the intensity of their

feelings for Timmy, the Drummonds are

again requesting a conference with you

to discuss adoption. I believe they

will explore every possibility in

their efforts to keep Timmy first with-

in the agency, but using outside re-

sources if it becomes necessary.

I hope this information will be

helpful. I understand Timmy's termina-

tion hearing is set for September 25th,

1975."

To this memo Mrs. Dallinger replied:

"Thank you for your memo of

9/3/75 concerning this case. I have

discussed the case with Ms. Staten.

We feel it is inappropriate to decide

the matter prior to termination pro-

ceedings on 9/25/75. I will throw

the issue open to the adoption com-

mittee at the end of September, if he

is freed. Regardless of any decision

made, you may assure the Drummonds

that they will be given further inter-

views with me or other adoption staff

about this matter. Early Octoher would

appear to be the best time for this

and I will see that they are contacted.

Please loan me any case files you have

on the Drummonds.”

On September 25, the Juvenile Court of

Fulton County entered what is known as a

"Termination Order," ending the parental

rights of Timmy's natural mother and plac-

ing his custody in the Georgia Department

of Human Resources, Division of Family and

Children Services, granting the Division

the right to place Timmy for adoption.

Thereupon, on October 3 a "Social

Study on Child to be Placed" was made for

Timmy. It was made by an adoptions case-

worker named Phyllis Jonas. This study

described the child as having “medium ol-

ive" skin, "dark brown," "thick rather

coarse and wavy hair" and as being a "very

attractive child," normal physically and

mentally, stating "child is well adjusted

and happy. He is a bright verbal child."

This study was followed by an "evalu-

ation interview" by caseworker Brenda B.

Payne. Her report, which contained a rec-

ommendation that the Drummonds be permitted

to adopt Timmy, is quoted in full:

"Mr. and Mrs. Drummond arrived

early for their interview. They

brought Timmy with them. He continues

to be an extremely alert, happy and

attractive child. While I interviewed

the Drummonds, Mrs. Holloway, Timmy's

worker, care[d] for him in the play-

room. The Drummonds were obviously

very nervous and anxious at first.

Initially I reviewed the past

events with them, their meeting with

Mrs. Dallinger and Mrs. Grape, the

decision made at that time, and

their change of heart later. As Ms.

Hauben's contacts indicated, the

Drummonds have had a chance to think

about their interview last spring,

and have come to the conclusion that

adoption by another couple may not be

what is best for Timmy.

The Drummond's expressed their

feelings that although everyone wants

to do ‘what's best for Timmy’ on re-

considering they seriously wonder if

placing him in another home, and

putting him through the trauma of a

move would be in his best interest.

The agency seems to be saying that

putting him in a black home would be

the prime consideration thinking ‘what's

best for Timmy.' The Drummonds stated

they felt they knew Timmy better than

any agency personnel, they've cared

for him, watched him grow and develop,

and perhaps they know best what would

be best for him.

I told the Drummonds that part of

my functions was to sit down with them

and think together what would be best

for Timmy -- that frankly none of us

were really sure of what would be best

at this point. I spent a good deal of

time in finding out about the Drummond's

Orientation toward blacks and the black

community. Although the Drummond's

admitted to have some degree of racial

prejudice in long years past, due to

their age and society's focus (?)

they felt that their ( ) had change[d]

every year before getting Timmy. Mr.

Drummond states he's had lots of rela-

tionships with blacks thru his job,

and has worked under a black super-

visor.

He spoke in positive terms of

these relationships. Mrs. Drummond

said she had worked as a nurse several

years ago and had worked closely with

many black people and she also said

that with their contacts with people

in the gospel singing world, many more

blacks were involved as musicians and

performers than in years past. They had

worked closely with many black per-

formers and seen [sic] able to form

very good relationships with them.

Although there are no blacks living

in their area in Douglasville, Mr.

Drummond remarked that they live in a

subdivision with many young families.

He stated they had never had any pro-

blems with Timmy's being accepted by

the neighbors, and seemed to feel that

the young adults of today are much more

accepting of people of other races. The

Drummond's indicated that Timmy had

been enrolled in an integrated kinder-

garten setting, but Mrs. Drummond was

advised to take him out for awhile by

Timmy's doctor due to his bouts with

tonsillitis. The public school nearby

is integrated; however, the majority

of the children who attend are white.

We talked some about whether or

not Timmy understand[s] he's different

yet. They said that he's really too

young to yet be aware that he is, but

as he gets older they certainly will

try to be as open with him as they can

about his heritage and race. (Ac-

cording to Ms. Holloway with her con-

tacts with Timmy it is evident he's

not yet aware of any colors yet and

cannot identify by name colors like

red or green, or cannot say what color

he is).

Although Timmy has not yet noticed

that he is different Mr. and Mrs.

Drummond were certainly able to acknow-

ledge that other people have noticed.

They are aware that Timmy will be

noticed and are aware they will have

to help him through many hard times in

his life. Mrs. Drummond said she knows

they will have to handle people reac-

tions to Timmy; they certainly don't

deny they've already had to handle

stares and comments from people of both

races. Mr. Drummond said people of both

races. Mr. Drummond says people stop

and ask what nationality he is and he

tells them. He says he wants Timmy to

be proud of the fact that he is part

black. Mr. and Mrs. Drummond both said

that although they've [sic] certain

Timmy may face ridicule or rejection at

times, they feel if he has their love

and support, as well as his gift of

openness, friendliness, and very high

intelligence, that this would enable

him to have a happy and secure life.

Mrs. Drummond expressed her belief

that ( ) was responsible for making

Timmy such an exceptionally gifted

and friendly child, so that in spite

of problems about his race he will be

liked and accepted by those who come

to know him personally.

The Drummonds are very much aware

of Timmy's exceptional mental abilities.

They definitely plan to send him to

college if he wants to go, and stated

they hoped maybe he would want to be

a professional person such as a doctor

or lawyer. I feel they recognize that

he may need much more stimulation as

he gets older, and seemed willing to

consider outside resources, special

schools or tutors in order to help him

reach his potential.

When we talked in detail about

some of the specific problems Timmy

might face because of his race, Mrs.

Drummond reacted in a strongly pro-

tective manner. She said if she ever

heard of a teacher or anyone else giving

him trouble because of his race, she'd

"go down there and give them a piece

of my mind.' I tried to help them see

that while it would be good to support

Timmy during these times that if they're

over protective they wouldn't give

Timmy the chance to become independent

and able to stand up for himself. I

noted, that one of the advantages

Timmy would have in a black home would

be that he would be given survival

skills, would be given guidance from

people of the black race as to how to

protect himself and win difficult

situations. It would be much easier

for a black parent to give him these

skills than would a white parents, as

they would be teaching him from their

own experience. Although the Drummond's

understood what I was saying, they

felt that the most important thing

Timmy needed to be secure and happy

about himself, was to have parents

who truly loved him.

We talked about how the rest of

the Drummond's extended family felt

about Timmy. The Drummond's said that

all of their family, their brothers

and sisters, and Mrs. Drummond[s']

mother dearly loved Timmy. Mr. Drum-

mond's parents are deceased. Mrs.

Drummond said her mother called her

before our meeting today to say she'd

be ‘waiting by the phone to hear the

results.' Evidently the whole family

is behind the Drummonds 100% and Timmy

is fully accepted by them all.

I spent a lot of time in talking

with the Drummonds about things they

might have to face with Timmy--the

social pressures, the feelings of in-

security he might have, and especially

problems which might arise during ado-

lescence in regard to dating and peer

group relationships. I gave them true

case examples from articles I'd read

about blacks raised in white homes, al-

though I did have to admit there were

both very negative and positive

experiences these children had. The

pros and cons were about equal in those

situations. I showed the Drummonds pic-

tures of our foster child Jackie who is

a mixed race five years old, showing how

much he had darkened over the years.

As I expected, none of these things

seemed to change the Drummonds mind.

They felt they love Timmy now and will

always love him regardless of what color

he becomes or what culture he wants to

identify with. They indicated that the

agency thought they were good enough to

raise Timmy up till now, so on what

basis other than race were we unwilling

to consider them as adoptive parents.

Mr. and Mrs. Drummond were not hostile,

toward this agency, but they again stated

they felt that the fact that they loved

Timmy and he loved them was the most im-

portant thing for the agency to consider.

I tried to discover how far the

Drummonds would be willing to prepare

themselves should they be allowed to

raise Timmy. They would be willing to

do anything we suggested to go through

a series of intensive interviews with

black caseworker to help them under-

stand the black culture and heritage,

to read books and other literature in

order to educate themselves in the

black experience, and to talk with their

own black friends at work about their

feelings and experiences about being

black. They were extremely coopera-

tive and seemed willing to accept any

help we could give them. They were

very interested in hearing about the

Buechle couple and would be very in-

terested in being put in touch with

them.

At the present time our relation-

ship with the Drummonds remains good.

They are not hostile or angry and are

very willing to accept supervision or

guidance from us. However, they did

make it clear they loved Timmy enough

to fight for him and would take the

matter to court if necessary. I do fear

if this result[s], and the Drummond's

win in court we would have damaged any

chance we would have to give them

guidance and help in raising Timmy,

as our relationship with them would

most probably be destroyed. They are

pushing for a decision to be made soon.

Mrs. Drummond says this situation has

caused them lots of worry and heart-

ache; she said Timmy is at a crucial

period in his life, and he needs to be

given some security, instead of living

under this threat of removal. The

Drummonds understand the decision is

not mine to make, that it will be a

committee decision, they do ask that

this matter be resolved soon for every-

one's sake. I told the Drummonds they

would be notified of our decision as

soon as possible.

Observation and Recommendations:

In thinking about the agency's

position in this case I still can see

it remains a two-sided thing. In my

brief contact with this family I have

both positive and negative feelings as

have other workers.

I was concerned about how intensely

the Drummonds relate to Timmy; it turns

me off a little to see them getting him

to ‘perform or do tricks.' The reasons

for this may be pusitive or negative--

he may be a novelty or toy for them, or

they may just be over-emphasizing his

achievements and getting him to perform

to prove to caseworkers they are taking

good care of him and stimulating him.

I don't know what may be the cause, but

I definitely hope this pattern would

not continue as he grows up. I also

understand from other workers that Mrs.

Drummond has an almost hypochondriac

focus on Timmy's health. There defi-

nitely is a fear he could be pampered,

spoiled and over protected by them.

Also, on considering the Drummonds

age and background, it does seem their

attempts to help Timmy understand his

black heritage will be admittedly arti-

ficial though sincere and honest in

motivation. Whether or not the Drummonds

can become comfortable with the subject

of race over the years, so that their

attempts will be natural and spontaneous

is anybody's guess.

I also am very much aware that

in intellect and intelligence Timmy

is far above the Drummonds. Although

they can offer adequate stimulation

now, who is to say how much they'll

be able to stimulate Timmy as he

grows up. Certainly to ‘waste’ his

intelligence would be a shame, al-

though if he develops a trauma be-

cause of being moved he could become

a very intelligent culture but perhaps

insecure and unhappy individual.

On the positive side I can defi-

nitely see that Timmy is loved by the

Drummonds, and he loves them. They

do not seem to have tried to ‘hide

Timmy’ and are constantly taking him

to public places, gospel shows etc.

They seem to have so far instilled in

him a good feeling about himself and

he seems happy and well adjusted. So

far they seems [sic] able to deal with

his racial identity in an acceptable

manner. The Drummonds do have more

involvement with blacks than we had

the early stages of developing healthy

attitudes about black people.

The fact that their other family

members are supporting them about Timmy

is also a positive.

Because the Drummonds are not from

the kind of upper-middle class achieve-

ment oriented home most caseworkers come

from it does make it hard to visualize

seeing Timmy grow up ‘successfully' in

this kind of culture. However who

really can say what kind of environment

is best to grow up in?

In conclusion, I personally feel

for several reasons we should let Timmy

remain with the Drummond's, in spite of

our concerns. Either way there are

risks and no guarantees. The fact that

there prsently are no appropriate homes

for Timmy, and the fact that he mignt

also experience some rejection by some

members of the black community due to

his ‘whiteness’ is also a consiaeration.

Also my concern that we most probably

would be facing court action by the

Drummonds with some doubt as to the

"strength of our case' is also a factor.

For Timmy's well being I do not feel

that a long court involvement would be

beneficial regardless of what the courts

decision is. The Drummonds are evi-

dently living under a great deal of

stress and eventually this may be

transferred on to Timmy.

I do feel that a group consensus,

is probably the best way to decide

what to do. This certainly is too

risky a situation for any one person

to make the decision alone. I hope

the group will be able to meet and

decide some thing soon."

Acting on Mrs. Payne‘s recommendation

a group was called on November 11 to con-

duct a “staffing," which is apparently a

word of art to describe a discussion by

staff personnel who presumably are exper-

ienced in the area of concern. Of the 19

persons present at the staffing the record

does not indicate that more than four had

seen Timmy or the Drummond family. Of the

six or seven caseworkers and supervisors

who had seen the child and his foster par-

ents, it appears that Mrs. Grape, Mollie

Bartlett, and Barbara Osgood were not pre-

sent at the staffing. The record does not

clearly establish the precise time, place

or form of the final action which the defen-

dant Department or its officials took that

denied the Drummonds' request to adopt the

child. Neither does it show precisely what

authority any one of the participating staff

persons had to make the final decision. It

appears that the officials treated the vote

taken at the staffing as representing final

denial of the Drummonds' request. In any

event, Mrs. Drummond testified that a few

days after the staffing, she and her husband

were called to the office and met with Mrs.

Dallinger and Mrs. Holloway and that the

former said to them: "I am sure that you

are both very anxious to know what has hap-

pened and we called you in to tell you that

the decision still stands, that we feel that

Timmy will be better off adopted by a black

couple or a black family."* (Emphasis added.)

At the trial, during her testimony,

Mrs. Dallinger gave a different interpreta-

tion of the March conversation, saying that

the reference to black family was to indi-

cate that it would be more likely that a

black adoptive home would be available.

2. Apparently the only "decision" to which

reference could be made was the decision made at

the March 11 staffing which, it will be remembered,

preceded the first meeting between Mrs. Dallinger

and Mrs. Grape with the Drummonds.

Her testimony follows:

"0.

Actually, you had made a tenta-

tive decision at the March meeting

to place him in a black home if

you gained the parental rights?

I thought that would be the likeli-

hood of the home that would be

available, but even all the way

through after the final decision

was made when I asked the State

for homes, I did not ask for black

homes. I asked for whatever homes

were available for this child.

Reading again from your testimony

in your deposition on page twenty-

six, 'So there had been a request

to adopt that you know'--talking

about the Drummond--'is that right?

And the request had been made in

spite of your knowledge of his

mixed race, of his being a mixed

race child?

That's right.

Did you verbalize an opinion that

he would be better, make a better

adjustment and have a better life

with a black couple in the black

community?

Oo - se) >

Yes, I did.

Did Miss Grape verbalize that?

Yes.

Actually, you had made a tentative

decision at that time to place him

in a black home if you gained--had

his parental rights terminated; is

that correct?

That's right.'

Did you make that--

That was a tentative decision that

he would go into what we thought

would be probably a black home. You

have to understand the supplies of

homes that are available."

Mrs. Dallinger testified further about

the November meeting:

“2.

-.- In the November meeting did you

tell Mr. and Mrs. Drummond that

the decision had been made to place

Timmy in a black home?

Yes, because then we had made the

final decision that they could not

adopt, and we had then selected the

home, so, yes, we knew the home then.

Did you have the --

That was definite then.

At the time you told them?

Uh huh. In November. I told the

characteristics about the home that

had been selected, you know, that

I thought maybe would help them rea-

lize Timmy was going to go to a

good home.

At the time I'm talking about, may-

be, the staff meeting, the decision

was made there to place Timmy in a

black home?

In the staffing meeting?

In the staffing meeting.

No. We didn't decide where to place

Timmy. We decided that we would

place him for adoption outside of

their home. We were trying to make

a decision in that meeting whether

it would be in Timmy's best interest

to leave him with the Drummonds and

allow them to adopt him or place him

up for adoption outside, to seek

adoptive homes outside of, you know,

of them.

Did you not decide at that meeting

that Timmy would be placed in a

black acoptive home?

No. I don't believe so. I think we

talked about, again, in terms of the

100

THE COURT:

supply, we thought that was proba-

bly what would be available.

Show her this last paragraph.

[The last paragraph reads: 'A vote was

taken and it was a group decision that it

would not be in Timmy's best interest to

leave him in the Drummond home, and that

we would begin immediately to look for an

appropriate black e7optive home. Although

this was a difficult decision it was felt

that Timmy's long range best interest must

be the focus.']

BY MRS.

HAMES:

Referring to Plaintiff's Exhibit

15, the discussion of race, I would

ask, that purports to be notes from

that meeting, and I ask if that

correctly sets forth the decision?

These are not my notes. That may

have been the understanding of the

person that wrote these notes.

So you are denying that now?

Huh?

You are denying that the decision

was made at that meeting to place

Timmy in a black home?

We talked in that meeting about

mixed children and where they seem

101

to adjust better and what kind of

black couple--what kind of a white

couple could accept these children,

you know, what were the characteris-

tics of those couples. I think our

general feeling, you know, at the

end of that meeting that it would

likely be a black home, you know,

available for him that would fit

those requirements, but like I said,

you have to understand the procedure.

After we rule out one home, then we

look at the pool of homes available,

and we look at all homes available.

But in the minds of all of us at

the meeting--

Q. Did you have a black home available?

MR. MOTE: Your Honor, I think she was

in the middle of her answer.

THE COURT: Did you complete your answer?

MRS. HAMES: I'm sorry ...

THE WITNESS: What did I start to say?

MR. MOTE: I think you were saying in the

minds of us at the meeting--

THE WITNESS: Well, we knew about the

pool of homes in Fulton County. That

is the homes that we recruit, study,

develop, this kind of thing. And

we had already looked there, and we

192

knew there was no suitable white or

black homes. There were both black

and white homes approved and waiting

for children, but none that we

thought met Timmy's other needs.

So we didn't feel like we had a

home in Fulton, and we knew we would

have to ask the State. And we've

had a number of mixed race children

lately, and we haven't gotten but

one white home that I know of in a

long time for a mixed race child.

That was a home studied by Child

Service and Family Counseling, and

then we've had one mixed marriage

home, you know, available in the

county that we could have looked at

for Timmy, which we did, I believe.

So we already, you know, had some

awareness of what the supply of

homes available for him were. The

supply didn't include any white

homes that we knew of.

(Emphasis added.)

Finally, Brenda Payne, whose re-evalua-

tion recommendation was that tiie Drummonds

be permitted to adopt Timmy, and who was

present at the staffing, testified at the

trial:

103

Did you interview the Drummonds in

connection with their desire to

adopt a child by the name of Timmy?

Yes.

Did you also participate in a staff

meeting in November in which the

question was considered?

Yes.

I hand you Plaintiff's Exhibit 15

and direct your attention to the

paragraph numbered seven.

Yes.

In the second paragraph there, it

says: ‘After discussion, the staff

was convinced if we left him in his

present environment, we would be

giving him problems he would not

have if placed in a black home.'

I've lost where that is. Where

would that be?

Excuse me. The second paragraph

under seven.

At present Timmy is so young? Oh,

I see. Okay.

And then it goes on to say: ‘A vote

was taken, and it was a group deci-

sion that it would not be in Timmy's

best interest to leave him in the

104

Drummond home and that we would be-

gin immediately searching'--is that

what this is--'‘and'--

A. Immediately to--I don't know. ‘'Seek'

maybe? 'Seek,' maybe, an appropriate--

Q. Search immediately for an appropriate

black adoptive home; is that correct?

A. Yes.

Q. Okay. Was that the decision of that

meeting?

A. Yes. That the Drummonds would not

adopt Timmy.

Q. What about that you would seek a

black adoptive home?

A. I believe that was the decision."

The Dummonds were not present at the

"staffing" of November 21. No physician or

psychiatrist was present. The Drummonds were

not given an opportunity to present any state-

ments or evidence and there is no indication

that they were put on notice of the basis on

which the decision might rest. Of course, it

is apparent from the face of the documents

that no findings of fact were made as to any

of the possible grounds of challenging their

qualifications as adoptive parents. i.e., on

account of being foster parents, being older

than desirable, or not being in good health

or of limited intellectual capacity. It is

195

apparent that they were attempting at all

times to resist only the possible removal

of Timmy to a black family or home, because

of his being a mixed race child.

As indicated already, it is impossible

to determine precisely what authoritztive

tribunal or responsible official actually

made the decision and, of course, it follows

that it is impossible to tell the basis on

which the decision was made. The record

clearly establishes two elements that could

not have provided an automatic basis for

disqualifying the Drummonds. These two ele-

ments, which were discussed by the parties

at the trial and are added as make-weights

on appeal in an effort to support the action

of the Department, are the mere fact that

the Drummonds were foster parents and the

fact, standing alone, that Mrs. Drummond at

the time of the staffing was 51 years of age

and her husband was 39. The record clearly

eliminates these factors as automatically

excluding the Drummonds from consideration

in view of the consistent pattern by which

the participants repeatedly stated, after

all of the facts with respect to the Drum-

monds’ age and their status as foster parents

were fully known, that they were given full

consideration as adoptive parents by the

106

Department. This is not to say that in

passing on the qualifications of the Drum-

monds as adoptive parents those responsible

for making the decision could not take into

consideration the actual age of the persons

involved. It merely excludes the age factor

and the somewhat discussed policy of dis-

couraging adoptions by foster parents as

automatic grounds for justifying the denial

of the Drummonds' application.

We have outlined as fully as we have

the record facts not inorder to weigh them

and determine whether they would have war-

ranted the proper officials from arriving

at the same ultimate decision as announced

by Mrs. Dallinger to the Drummonds after

the staffing. We have given these facts to

show the substance back of the plaintiff's

contention that they were deprived of what

they describe as the right to parentage under

the theory that a close familial attachment

to Timmy with the consent of the defendants

over a period of two years created a pro-

tectable interest in the relationship under

the Fourteenth Amendment to the Constitution

of the United States. The recitation also

shows the substantial nature of the equal pro-

tection claim of the Drummonds, that is to

say that even if they should concede that

they had not acquired any protectable interest

in their family relationship with Timmy,

10'7

they, nevertheless have been denied equal

protection of the laws as guaranteed by the

Fourteenth Amendment, because they were not

permitted to compete equally for the adoption

of this mixed race child because, as they

allege, the defendants denied their request

for adoption arbitrarily because of their

race.

In the ensuing trial in the district

court in which the Drummonds urged their

contentions, the court, without dealing

specifically with the due process clause,

concluded that the decision of the defen-

dants did not violate either the plaintiffs'

§ 1983 or constitutional rights. °

3. The court's verbal order follows:

“THE COURT: All right, I'll rule for the defendants.

This case comes to the Court on a complaint, the

crux of which is that the defendant's refusal to

place said child with plaintiffs for adoption,

based solely on racial grounds, is an unconstitu-

tional denial of equal protection of the Jaws and

an unlawful violation of the civil rights of the

plaintiffs.

Therefore, the issue before the Court is to

determine whether the decision of the Department

of Fulton County Department of Family and Children

Services was one solely based upon the impermissible

criteria of race, or whether the race, to the ex-

tent that it entered into the decision, was only

that legitimate consideration thereof which is--

which the Court holds necessarily as required in

determining the proper placement of a child.

It is obvious that race did enter into the

decision of the Department. The Court has read

from beginning to end each of the exhibits which

Following denial of their claim by the

district court, the Drummonds filed a suit

in the Superior Court of Fulton County, in

which they alleged a denial of their rights

as foster parents without a due process

hearing and also alleged denial of their

rights under the equal protection clause of

the Fourteenth Amendment. That court dis-

missed the suit and the Georgia Supreme

Court has affirmed, Drummond et al v. Fulton

Co. Dept. of Family & Children Services et

al., 237 Ga. 449, 228 S.E.2d 839 (1976). In

have been submitted by the Plaintiff, same of which

throw considerable light on the question, particu-

larly the question, particularly Plaintiff's Exhibit

15, if I'm not mistaken.

THE CLERK: Here is 15, Your Honor.

THE COURT: Which shows just--which, as far as the

Court can tell, although here is no date on it, af-

fords a contemporaneous version of the actual deci-

sion that took place, and where it is obvious that

race did take place, it appears to the Court there-

from that the consideration of race was properly

directed to the best interest of the child and was

not an automatic-type of thing or of placement, that

is, that all blacks go to black families, all whites

go to white families, and all mixed children go to

black families, which would be prohibited.

In fact, certain statistics indicate that des-

pite the difficulty, despite the difficulty of deter-

mining proper homes for mixed race children.as is

shown by Plaintiff's Exhibit 19, nevertheless, the

interrogatories-—-answers to interrogatories which

have been received, show that there have been some

Placements of mixed race children with white parents.

109

its decision, the Georgia Supreme Court dis- The best interest of the child test

cussed the Drummonds'’ contention as follows: has been adopted in many jurisdictions.

"The Drummonds next urge that any

application of the 'best interests of

(citations omitted). This rule con-

templates a presumption that the best

interests of the child lie with the

natural parent, but that this presump-

the child’ rule necessarily implies

some de facto rights arising from the

psychological dependency of a parent-

child relationship which has been sus-

tained over a period of time. Plain-

tion may be rebutted by clear and con-

vincing evidence to the contrary. in

re Confessora B., supra [75 Misc.2d

tiffs' expert witnesses testified to 576, 348 N.Y.S.2da 21).

the trauma of separating a young child

such as Timmy from the only parents he

has ever known at an age when the sepa-

ration could not adequately be under-

The Georgia law, however, has not

followed this pattern. The best inter-

ests of the child test is used only

between parents who both have equal

stood or explained to him. See Alter- right to the child. Code Ann. § 74-107;

natives to Parental Right in Child Knox v. Knox, 226 Ga- 619, 176 S.E.2d

Custody Disputes Involving Third Par- is not the function ot this Court at all. If

ties. 73 Yale L.J. 15 (1963). there has been same error in the handling of the

case the Fulton County Department of Family

ae clei, ee so far as the Court knows,

at least the Plaintiff so alleged, it 1s subject

to the Georgia Administrative Procedure Act, in

So, apparently, it is not an automatic-type of

placement which the Court holds to have been forbid-

den. Therefore, the Court feels that the Plaintiff

has not made out a prima facie case under Title 42,

i i authori

Section 1983, of the Code of the United States or prey — > a ee Son tae —

the Fourteenth Amendment to the Constitution of the violated. And, perhaps, although the Court does

United States. - 3 oon that t} eisa large discretion vested

I dissolve the temporary restraining order, in the Defendant Department, that if there have

refuse to issue the preliminary injunction, and been any procedural irregularities, the Georgia

will dismiss the case. I want to say at this point, courts can cure those irregularities. But so far

though, that I am very much afraid from what I as this Court is concerned, it has had before it

have seen in the papers and fram the questions the very narrow question of whether the question

which have been asked and so forth that people of race impermissibly entered into the decision of

have been, perhaps, even the plaintiffs here, have the Defendant Department so as to block the legiti-

been under the impression that this Court has ple- mate consideration of factors which ought to have

nary authority with respect to this matter to de- been made by them.

termine which is the proper or the best home for

adoption, that is, to make a choice between the This record, as submitted by Plaintiff, the

otic ; case di show face [sic]

Plaintiff's home and the home of whoever has been armnaggyene tA heey Pane it BD primey nel ym

selected by the Fulton County Department. That case, and

110 1114

712 (1970). Where the dispute is be-

tween a natural parent and a third

party, on the other hand, the court

must award the custody of the child to

the parents unless he has lost his

parental prerogatives under Code Ann.

§ 74-108 or is unfit. Edwards v. Cason,

237 Ga. 116, 226 S.E.2d 910 (Other

citations omitted.)

The Drummonds ... misconstrue the

Georgia law in assuming that the best

interests of a child rule applies to

foster parents. Without this test and

its focus on the child, there is no

basis for recognizing any right in the

monds’ claim of right by virtue of

their status as Timmy's foster parents.

The trial court did not err, as alleged

in Enumeration 3, in denying any legal

rights to foster parents who have cared

for a child for more than two years

and are his psychological parents.

Enumeration of error 7 urging that

the trial court erred in holding that

the Drummonds were not denied due pro-

cess or equal protection under the

Fourteenth Amendment must also fall

under our holding that foster parents

have no right to adopt a foster child

and thus no right to contest the

agency's withholding of consent."

The Georgia Court then dismissed the

"psychological parents.' Since the

focus in determining whether a third

party is entitled to custody is on the

natural parents and whether or not they

have forfeited their rights or are

Drummonds' claim to due process on the

theory that their right to adopt a child

under Code Annotated Section 74-402 is a

"protectable interest" which the Court stat~

ed was limited by the principles announced

in Bd. of Regents v. Roth, 408 U.S. 564, 92

S.Ct. 2701, 33 L.Ed.2d 548 (1972). The

Court then said:

"They in fact were given the right

unfit ... any relationship between the

child and his foster parents is pri-

marily irrelevant. Stuckey v. Jones,

212 Ga. 495, 93 S.E.2d 719 (1956);

Watkins v. Terrell, 196 Ga. 651, 27

S.E.2d 839 (1943)....

We thus find no merit in the Drum-

to apply, they were interviewed and

the application denied. As we have

already noted, the agency's discretion

but to dismiss the action and dissolve the in-

junction and it will be so ordered. And the De-

fendants may submit an order within seven days." 44%

112

as to which adoptive family will be

chosen is absolute and the Drummonds Process Clause of the Fourteenth

have no rights beyond being considered. Amendment. The freedom to marry has

Furthermore, the United States Supreme long been recognized as one of vital

Court has made clear that property personal rights essential to the

interests are defined by state law. orderly pursuit of happiness by free

Bd. of Regents v. Roth, supra. The men.

law of Georgia very clearly provides Marriage is one of the ‘basic

no rights in foster parents to adopt." civil rights of man,' fundamental to

our very existence and survival. Skinner

v. Oklahoma, 316 U.S. 535, 541, 62

S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942).