Smith v. Organization of Foster Families for Equality and Reform
431 U.S. 816 (1977)

Procedure:Appellee foster parents brought a civil rights class action against appellant state arguing that procedures governing the removal of foster children from foster homes, violated the Due Process Clause of U.S. Const. amend. XIV. The United States District Court for the Southern District of New York found them defective, and the state appealed.

Facts: Under the New York Social Services Law, an authorized placement agency has discretion to remove children from foster homes with 10 days' notice. Objecting foster parents may request a conference with the Social Services Department to submit reasons for not removing the child, and a decision must be rendered within five days. The foster parent may appeal and obtain a full adversary administrative hearing, and that decision is judicially appealable. New York City allows a full trial-type preremoval hearing if the child is being transferred to another foster home. Another statewide procedure provides for preremoval judicial review if the child has been in the foster home for 18 months or more. The Organization of Foster Families for Equality and Reform (P) attacked the constitutionality of these procedures on Fourteenth Amendment due process and equal protection grounds, asserting an interest of foster families as "psychological" families entitled to a constitutional right of family privacy. The district court held for P. Smith, the administrator of the New York City Human Resources Administration (D), appeals.


Issue: Whether foster parents have a paramount constitutionally protected liberty interest when foster children are in their care for over 1 yr?

Rule:Procedures provided by New York State and New York City for removal of foster children from the foster home did not deprive foster children of liberty interest on theory that the disruption of the child's relationships with his foster parents might constitute grievous loss; to determine whether due process requirements apply in the first place, court must look not to the weight of the interest involved but to the nature of the interest.

Holding: No. Judgment reversed.
The Supreme Court, Mr. Justice Brennan, held that removal procedures under which foster parents were given ten days' advanced notice of removal, were permitted to request a preremoval conference with the social services department, and were entitled to full adversary administrative hearing, subject to judicial review, following the conference with no stay of removal pending the hearing and judicial review, and under which preremoval judicial review was provided with respect to children who have been in foster care for 18 months or more afforded sufficient due process protection to any liberty interests involved.

AnalysisThough not exclusive, the usual understanding of "family" implies biological relationships. However, the emotional attachment that a foster child may have with her foster family requires a consideration of the foster family's interests as somewhat greater than a mere collection of unrelated individuals. On the other hand, there are also important distinctions between a natural family and a foster family. The foster family has custody of a child based on a contractual arrangement, and they are compensated by the state for their services. There is also a tension with the rights of the natural parents that cannot be overlooked.