Brown v. County of San Joaquin, No. CIV.S-83-1464 RAR.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtGeorge H. Cunningham, Deputy County Counsel, Stockton, Cal., for defendants
Citation601 F. Supp. 653
PartiesMary BROWN, et al., Plaintiffs, v. COUNTY OF SAN JOAQUIN, et al., Defendants.
Decision Date22 January 1985
Docket NumberNo. CIV.S-83-1464 RAR.

601 F. Supp. 653

Mary BROWN, et al., Plaintiffs,
v.
COUNTY OF SAN JOAQUIN, et al., Defendants.

No. CIV.S-83-1464 RAR.

United States District Court, E.D. California.

January 22, 1985.


601 F. Supp. 654
COPYRIGHT MATERIAL OMITTED
601 F. Supp. 655
Deborah M. DeBow, DeBow & Kendrick, Sacramento, Cal., Carole Shauffer, Youth Law Center, San Francisco, Cal., for plaintiffs

George H. Cunningham, Deputy County Counsel, Stockton, Cal., for defendants.

MEMORANDUM AND ORDER

RAMIREZ, District Judge.

The question presented by the pending cross-motions for summary judgment is whether a foster parent, a foster child, or both, is entitled to procedural due process before a county welfare department1 removes the child from the home, thus terminating the foster parent—foster child relationship. Because California law already requires county welfare departments to provide procedural due process to foster families in most circumstances,2 the precise issue raised by this action is the constitutionality of the California regulation which excepts foster families similarly situated to the plaintiffs from entitlement to procedural due process. Cal. Dept. of Social Services Manual § 30-378.23.3

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Mary Brown is a white, middle-aged woman residing in the County of San Joaquin, State of California. Ms. Brown is a licensed day-care provider and a licensed foster parent.4

Plaintiff "Jenny"5 was born on October 29, 1979. Her biological mother proved to be neglectful, as a result of which Jenny came to the attention of the child welfare services unit of the San Joaquin County Human Services Agency. The County determined that Jenny was a child in need of protection and care, Cal.Welf. & Inst.Code § 300, and, on March 7, 1980, when Jenny was four months old, the County placed Jenny in the home of Ms. Brown. Shortly thereafter Jenny was adjudicated a dependent child of the court. Cal.Welf. & Inst. Code § 360(b). It appears from the record that Jenny's biological mother was white and that she was unwilling or unable to name Jenny's father. However, the parties

601 F. Supp. 656
seem to be agreed that, judging by appearances, Jenny's father is black

Jenny lived in Ms. Brown's home from March 7, 1980, until July 6, 1983, a period of 3¼ years. Sometime in 1981 the County became convinced that the reunification of Jenny with her biological parent(s) would never occur. The County therefore became obligated to find a permanent placement for Jenny. Cal.Welf. & Inst.Code § 16508. See also Cal.Welf. & Inst.Code §§ 366.2, 366.25. In July of 1981, when Jenny was approximately 1½ years old and had been living with Ms. Brown for approximately sixteen months, the County invited Ms. Brown to apply to adopt Jenny. Ms. Brown accepted that invitation and commenced completing the application forms and attending the pre-adoption classes prescribed by the County. In June of 1982, approximately one year after the County had invited Ms. Brown to apply to adopt Jenny, the County informed her that her application had been denied.

Ms. Brown responded to this denial by filing a petition to adopt Jenny.6 Cal.Civ. Code § 224n. The County moved to dismiss the petition on the ground that Ms. Brown lacked standing to file such a petition. In this regard, § 224n of the California Civil Code provides, in relevant part:

No petition may be filed to adopt a child ... except by the prospective adoptive parents with whom the child has been placed for adoption by the department....

The County argued that Ms. Brown was not a "prospective adoptive parent" within the meaning of the statute because the County had not placed Jenny with her for adoption, and thus Ms. Brown was, ipso facto, ineligible to file a petition to adopt.

The trial court was persuaded by the County's argument, granted the County's motion to dismiss, and entered a judgment of dismissal. Ms. Brown did not file an appeal from the court's dismissal of her petition. Instead she filed a petition for a writ of mandate in the District Court of Appeal. See San Diego Department of Public Assistance v. Superior Court, 7 Cal.3d 1, 101 Cal.Rptr. 541, 496 P.2d 453 (1972); C.V.C. v. Superior Court, 29 Cal. App.3d 909, 106 Cal.Rptr. 123 (1973). Although the appellate court initially granted a stay, permitting Jenny to remain in Ms. Brown's home pending its evaluation of the petition, eventually the appellate court denied the petition and dissolved the stay. Ms. Brown's petition for a hearing in the California Supreme Court met a similar fate, and on July 6, 1983, Jenny was removed from Ms. Brown's custody. The County has now placed Jenny elsewhere, but the particulars of that disposition are unknown to the court at this time. On December 6, 1983, Ms. Brown commenced the instant litigation in federal court seeking damages and injunctive and declaratory relief. On December 11, 1984, plaintiff filed a first amended complaint which in effect substantially narrowed the contentions of the original complaint.

II. RES JUDICATA

The defendants have asserted that the plaintiffs' action is barred by the doctrine of res judicata, relying on Migra v. Warren City School District Board of Education, ___ U.S. ___, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). The defendants contend that the plaintiffs' present action is barred because Ms. Brown could have and should have joined her present claim for procedural due process to her petition to adopt Jenny.7

601 F. Supp. 657

In Migra the United States Supreme Court decided that the doctrine of res judicata applies as fully in federal civil rights actions as it applies in other actions. Thus a federal district court hearing a civil rights action is required to give prior judgments of a state court precisely the same preclusive effect that such judgments would be given by the rendering state court. The question thus presented is what preclusive effect, if any, would the courts of the State of California give the judgment of dismissal issued in the adoption proceedings instituted by Ms. Brown?

California adheres to the "primary rights" doctrine, whereby each invasion of a primary right gives rise to a separate and distinct claim. Agarwal v. Johnson, 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58 (1979); Slater v. Blackwood, 15 Cal.3d 791, 126 Cal.Rptr. 225, 543 P.2d 593 (1975). Furthermore, California law permits, but does not require, the joinder of different claims. Cal.Civ.Proc.Code § 427.10. Thus under California law, a plaintiff may file as many actions as he has separate and distinct claims.8 The preclusive effect of the judgment of dismissal in the adoption proceedings must therefore be determined by inquiring whether the primary right asserted by Ms. Brown in this action is the same as or different from the primary right asserted in the petition to adopt.

As both courts and commentators have noted, framing the question as one of "primary rights" does not inevitably yield self-evident answers. City of Los Angeles v. Superior Court, 85 Cal.App.3d 143, 153, 149 Cal.Rptr. 320 (1978). It is clear that a primary right is not defined by the relief sought, Busick v. Workmen's Compensation Appeals Board, 7 Cal.3d 967, 104 Cal. Rptr. 42, 500 P.2d 1386 (1972), or by the legal theory on which the plaintiff bases his claim. Panos v. Great Western Packing Co., 21 Cal.2d 636, 134 P.2d 242 (1945). Rather a primary right is defined either by the harm suffered by the plaintiff, Agarwal v. Johnson, supra, Slater v. Blackwood, supra, or by the substantive right allegedly invaded. Mattson v. City of Costa Mesa, 106 Cal.App.3d 441, 164 Cal.Rptr. 913 (1980); Stafford v. Yerge, 129 Cal. App.2d 165, 276 P.2d 649 (1954).

It is difficult, of course, to analyze the adoption proceedings in terms of harm suffered. By filing the petition to adopt Jenny, Ms. Brown was not seeking to redress an injury inflicted upon her by another. The adoption proceedings were at most the assertion of a single substantive right — the right to adopt Jenny. It is clear that this is not the substantive right asserted by Ms. Brown in the present litigation. In this action Ms. Brown is asserting that, regardless of her entitlement, or lack thereof, to adopt Jenny, as a foster parent she is entitled to procedural due process before the County removes her foster child from her home and destroys the foster parent — foster child relationship.

The court concludes that the California courts, if presented with the question, would hold that Ms. Brown is not "splitting a cause of action" but is bringing independent actions on independent claims.9 Thus

601 F. Supp. 658
the California courts would not consider the judgment of dismissal in the adoption proceedings to have a claim preclusive effect. Accordingly, the present action is not barred by the doctrine of res judicata.10

III. PROCEDURAL DUE PROCESS

As a general rule, an individual is entitled to procedural due process before prejudicial governmental action occurs only if the governmental action would cause a deprivation of life, liberty, or property. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Goodisman v. Lytle, 724 F.2d 818 (9th Cir.1984); Powderly v. Schweiker, 704 F.2d 1092 (9th Cir.1983). In the instant case, then, plaintiffs can demonstrate entitlement to procedural due process before the County removes the child from the home only if either or both of them can demonstrate a liberty or property interest in the continuation of the foster parent — foster child relationship.

Quite clearly the County's removal of Jenny from Ms. Brown's home did not deprive either plaintiff of a so-called property interest. However expansively one reads the term "property," it cannot include the foster parent — foster child relationship. Such a relationship, if entitled to any protection at all, is protected because of the profound emotional and psychological bonds existing between the foster parent and the foster child,...

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18 practice notes
  • In re Custody of Z., No. 33954-4-II (Wash. App. 9/11/2007), No. 33954-4-II.
    • United States
    • Court of Appeals of Washington
    • September 11, 2007
    ...the balance required to protect a parent's interests versus a child's or third party's interests); Brown v. County of San Joaquin, 601 F. Supp. 653 (E.D. Cal. 1985) (recognizing that foster families and children may have a liberty interest in maintaining their relationship once efforts at f......
  • Rodriguez ex rel. Kelly v. McLoughlin, No. 96 Civ.1986(KMW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 8, 1999
    ...child had constitutional protected liberty interest in preserving integrity and stability of family); Brown v. County of San Joaquin, 601 F.Supp. 653, 662-63 (E.D.Cal.1985) (holding that foster parent had liberty interest in foster care relationship). 3. As the Court noted in Dietz v. Damas......
  • In re Custody of Z., 33954-4-II
    • United States
    • Court of Appeals of Washington
    • December 18, 2007
    ...the balance required to protect a parent's interests versus a child's or third party's interests); Brown v. County of San Joaquin, 601 F.Supp. 653 (E.D. Cal. 1985) (recognizing that foster families and children may have a liberty interest in maintaining their relationship once efforts at fa......
  • In re Custody of Z., 33954-4-II
    • United States
    • Court of Appeals of Washington
    • September 11, 2007
    ...the balance required to protect a parent's interests versus a child's or third party's interests); Brown v. County of San Joaquin, 601 F.Supp. 653 (E.D. Cal. 1985) (recognizing that foster families and children may have a liberty interest in maintaining their relationship once efforts at fa......
  • Request a trial to view additional results
18 cases
  • In re Custody of Z., No. 33954-4-II (Wash. App. 9/11/2007), No. 33954-4-II.
    • United States
    • Court of Appeals of Washington
    • September 11, 2007
    ...the balance required to protect a parent's interests versus a child's or third party's interests); Brown v. County of San Joaquin, 601 F. Supp. 653 (E.D. Cal. 1985) (recognizing that foster families and children may have a liberty interest in maintaining their relationship once efforts at f......
  • Rodriguez ex rel. Kelly v. McLoughlin, No. 96 Civ.1986(KMW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 8, 1999
    ...child had constitutional protected liberty interest in preserving integrity and stability of family); Brown v. County of San Joaquin, 601 F.Supp. 653, 662-63 (E.D.Cal.1985) (holding that foster parent had liberty interest in foster care relationship). 3. As the Court noted in Dietz v. Damas......
  • In re Custody of Z., 33954-4-II
    • United States
    • Court of Appeals of Washington
    • December 18, 2007
    ...the balance required to protect a parent's interests versus a child's or third party's interests); Brown v. County of San Joaquin, 601 F.Supp. 653 (E.D. Cal. 1985) (recognizing that foster families and children may have a liberty interest in maintaining their relationship once efforts at fa......
  • In re Custody of Z., 33954-4-II
    • United States
    • Court of Appeals of Washington
    • September 11, 2007
    ...the balance required to protect a parent's interests versus a child's or third party's interests); Brown v. County of San Joaquin, 601 F.Supp. 653 (E.D. Cal. 1985) (recognizing that foster families and children may have a liberty interest in maintaining their relationship once efforts at fa......
  • Request a trial to view additional results

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