Drummond v. Fulton County Dept. of Family and Children Services

• Decision Date: 07 September 1976
• Docket Number: No. 31316,31316
• Citation: 228 S.E.2d 839,237 Ga. 449
• Parties: Robert George DRUMMOND et al. v. FULTON COUNTY DEPARTMENT OF FAMILY AND CHILDREN SERVICES et al.
• Court: Georgia Supreme Court

Page 839

228 S.E.2d 839

237 Ga. 449

Robert George DRUMMOND et al. v. FULTON COUNTY DEPARTMENT OF FAMILY AND CHILDREN SERVICES et al.

No. 31316.

Supreme Court of Georgia.

Sept. 7, 1976.

Margie Pitts Hames, Mary Ann Oakley, Barbara J. Bethune, Atlanta, for appellants.

Troutman, Sanders, Lockerman & Ashmore, Daniel S. Reinhardt, Robert L. Mote, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Asst. Atty. Gen., Atlanta, for appellees.

Lawrence L. Schneider, Atlanta, amicus curiae.

UNDERCOFLER, Presiding Justice.

Timmy is a two and a half year old boy, who has been the foster child of the plaintiffs, the Drummonds, since he was one month old. He was placed in their home by the Fulton County Department of Family and Children Services (FCDFCS) after it received temporary custody by court order because the natural mother was unfit. In September, 1975, the natural mother's rights were terminated, legal custody was placed in FCDFCS, and Timmy became eligible for adoption. After their application was denied by the agency, the Drummonds filed this suit to enjoin Timmy's removal from their home and to force the FCDFCS to allow them to adopt Timmy. After the Drummonds' evidence was presented at the hearing on the interlocutory injunction, the FCDFCS moved to dismiss the complaint and the motion was granted. The Drummonds appeal. We affirm.

1. The Drummonds' complaint seeking injunctive relief to prevent Timmy's removal was dismissed by the trial court as a matter of law. Enumerations three, six, seven, and eight raise the question whether foster parents have any rights vis-a-vis their foster child, and thus standing to protest agency action on behalf of the child and to raise Fourteenth Amendment protections.

The Drummonds first argue that Code Ann. § 74-402, which states that '(a)ny adult person may petition for leave to adopt,' supports their claim of standing to contest the agency's action. Although the Drummonds may have standing to bring an adoption petition in the sense that they are legally eligible to apply to the agency, they have no standing to contest the legal custodian's absolute discretion whether to give the consent requisite to a successful petition for adoption. See division five of this opinion, infra. The contention that any such rights are conferred by this code section is without merit. ¹ We find Duncan v. Harden, 234 Ga. 204, 214 S.E.2d 890 (1975) inapposite as it deals with the revocation of consent by the natural parents. The mere statement of fact that the adoptive parents already chosen by the agency did not intervene in no way implies that all potential adoptive parents have any rights.

The Drummonds next urge that any application of the 'best interests of the child' rule necessarily implies some de facto rights arising from the psychological dependency of a parent-child relationship which has been sustained over a period of time. Plaintiffs' expert witnesses testified to the trauma of separating a young child such as Timmy from the only parents he has ever known at an age when the separation could not adequately be understood or explained to him. See Alternatives to Parental Right in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 15 (1963).

The best interest of the child test has been adopted in many jurisdictions. E.g, In re B.G., 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244 (1974); In re Confessora B., 75 Misc.2d 576, 348 N.Y.S.2d 21 (1973); Halstead v. Halstead, 259 Iowa 526, 144 N.W.2d 861 (1966) (and cases cited therein); Cummins v. Bird, 230 Ky. 296, 19 S.W.2d 959 (1929). This rule contemplates a presumption that the best interests of the child lie with the natural parent, but that this presumption may be rebutted by clear and convincing evidence to the contrary. In re Confessora B., supra.

The Georgia law, however, has not followed this pattern. The best interests of the child test is used only between parents who both have equal right to the child. Code Ann. § 74-107; Knox v. Knox, 226 Ga. 619, 176 S.E.2d 712 (1970). Where the dispute is between a natural parent and a third party, on the other hand, the court must award the custody of the child to the parent unless he has lost his parental prerogatives under Code Ann. § 74-108 or is unfit. Edwards v. Cason, 237 Ga. 116, 226 S.E.2d 910; White v. Bryan, 236 Ga. 349, 223 S.E.2d 710 (1976); Knox v. Knox, supra; Perkins v. Courson, 216 Ga. 611, 135 S.E.2d 388 (1964). See generally Stubbs, A Summary of the Georgia Law of Children, ch. 7 (1969).

The Drummonds (and amici, The Concerned Foster Parents of Metro Atlanta and Foster Parents in Action) misconstrue the Georgia law in assuming that the best interests of the child rule applies to foster parents. Without this test and its focus on the child, there is no basis for recognizing any right in the 'psychological parents.' Since the focus in determining whether a third party is entitled to custody is on the natural parents and whether or not they have forfeited their rights or are unfit (Code Ann. § 74-107; Perkins v. Courson, supra), any relationship between the child and his foster parents is primarily irrelevant. Stuckey v. Jones, 212 Ga. 495, 93 S.E.2d 719 (1956); Watkins v. Terrell, 196 Ga. 651, 27 S.E.2d 329 (1943).

In Carson v. Marette, 217 Ga. 614, 124 S.E.2d 74 (1972), in a similar situation where a foster parent sought to adopt a child whose legal custody had been placed in the juvenile court by written consent of the mother, the court placed the child in the plaintiff's foster home intending to allow the plaintiff to adopt it. When a neighbor complained that the plaintiff was treating the child cruelly, the juvenile court took the child back and placed it with the state agency. Plaintiff's habeas corpus petition was dismissed because she had no claim to the child. 'The only custody that petitioner, Mrs. Carson, ever had of the child was that of custodial care under the order of the court which could be revoked at any time.' 217 Ga. at 615, 124 S.E.2d at 75. We see no reason why the result should not be the same where the court has placed the legal custody in a state agency which also pays foster parents for the child's custodial care.

We thus find no merit in the Drummonds' claim of right by virtue of their status as Timmy's foster parents. The trial court did not err, as alleged in enumeration three, in denying any legal rights to foster parents who have cared for a child for more than two years and are his psychological parents.

Enumeration of error seven urging that the trial court erred in holding that the Drummonds were not denied due process or equal protection under the Fourteenth Amendment must also fall under our holding that foster parents have no right to adopt a foster child and thus no right to contest the agency's withholding of consent. The Fourteenth Amendment protects life, liberty and property interests from undue interference by the state. ² Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). 'To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.' 408 U.S. at 577, 92 S.Ct. at 2709. The Drummonds allege several theories under which they claim entitlement to Fourteenth Amendment protections. We, however, find no merit to their contentions, and thus no standing to demand due process or equal protection of the laws.

The Drummonds' first argument that the right to adopt a child under Code Ann. § 74-402, ³ is a 'protectable interest' under the Fourteenth Amendment has already been considered and rejected above. They in fact were given the right to apply, they were interviewed and the application denied. As we have already noted, the agency's discretion as to which adoptive family will be chosen is absolute and the Drummonds have no rights beyond being considered. Furthermore, the United States Supreme Court has made clear that property interests are defined by state law. Board of Regents v. Roth,supra. The law of Georgia very clearly provides no rights in foster parents to adopt.

For same reason, the Drummonds can not base their due process claim on a 'right of family privacy.' Since they have no right to keep Timmy, they can have no expectation of family privacy. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and other cases cited by the Drummonds are inapposite as the court in those cases was dealing with the rights of the biological parents.

The Drummonds next claim that the refusal by the adoption agency to allow them to adopt Timmy was based on erroneous information which they had no opportunity to contradict or correct and entitles them to due process. However, where there is no property interest to be protected, the Fourteenth Amendment does not 'guarantee against incorrect or ill-advised (agency) decisions.' Bishop v. Wood, -- U.S. --, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684, 693 (1976).

Nor do we find merit in the Drummonds' claim that they had a 'justified expectation' or 'implied contract' to adopt Timmy. See Board of Regents v. Roth, supra; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Sims v. Fox, 505 F.2d 857 (5th Cir., 1974).

The Drummonds' allegation that the agency's refusal to allow them to adopt Timmy constitutes 'a governmental attack on one's 'good name, reputation, honor, and community standing" (Sims v. Fox, supra, p. 862; Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971)), and thus imposes due process obligations on the agency, is also without merit. Since the agency did not disclose this decision publicly, but merely communicated its decision orally at a meeting with the Drummonds, it cannot form the basis of a claim that the Drummonds' reputation in the community was impaired. Any other publicity 'made in the course of a...