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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 437 U.S. 910

## Text

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 Code §74-409 [repealed] 180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 Code §74-410 [repealed] 180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 Code §74-411 [repealed] 181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

—
el

“ 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 Code §74-409 [repealed]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 Code §74-410 [repealed]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 Code §74-411 [repealed]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
180
180
181
182
184
187
187

Fe

[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.

02

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

03

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

04

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

05

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?

z.

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

U6

:
i

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

08

:
3

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

11

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).

A.

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

12

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

13

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.

14

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

15

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."

16

__—*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.

17

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.

18

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

19

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.

B.

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

20

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

z1

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

22

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

23

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

24

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

26

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.

27

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.

28

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

29

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.

31

(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-

32

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

33

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

34

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

an

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

37

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

28

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,

39

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

40

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

41

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

42

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.

44

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.

49

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"

46

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.

47

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

49
48

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

20

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

51

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

D2

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

93

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),
(c) (footnote omitted). If, as is usually
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

04

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,

3D

"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

38

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

29

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

61

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.

62

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

63

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

64

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

65

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:

Q.

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-

&6

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

68

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

69

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

70

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-

71

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

73

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,

74

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

73

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

78

"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

79

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

80

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:

81

"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-

82

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,

83

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

84

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

85

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

86

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

87

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

88

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

89

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.

90

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

91

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.

92

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.

93

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
first thought, and do seem to be in ©
the early stages of developing healthy
attitudes about black people.

94

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

95

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

96

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?

99

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.
Q.

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

18

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-—-answer

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0685%3A2. Public record. Not legal advice.