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

• Decision Date: 02 February 1977
• Docket Number: No. 76-1888,76-1888
• Citation: 547 F.2d 835
• Parties: Robert George DRUMMOND and Mildred Pauline Drummond, Plaintiffs-Appellants, v. FULTON COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, et al., etc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 835

547 F.2d 835

Robert George DRUMMOND and Mildred Pauline Drummond Plaintiffs-Appellants, v. FULTON COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES et al., etc., 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.

Margie Pitts Hames, Neil Bradley, Atlanta, Ga., for plaintiffs-appellants.

Robert L. Mote, Daniel S. Reinhardt, Atlanta, Ga., for defendants-appellees.

Alan R. Turem, Atlanta, Ga. (Court-appointed not under the Act), Andrew R. Kirschner, Atlanta, Ga., special counsel for interest of Child Timmy.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, GOLDBERG and RONEY, Circuit Judges.

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 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 interests of all concerned to keep the hearing on preliminary and permanent injunction narrowly restricted, ¹ 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 defendant 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 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 subsequently described by the caseworkers and supervisors, both foster home and adoption personnel, as "excellent," "loving," "extremely 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 maintained by telephone, especially when the Drummonds desired to leave town for trips. Some time late in 1974, it came to the attention of the then current caseworker Barbara Osgood, that the Drummonds wished to adopt Timmy. She had not then seen Timmy or the Drummonds, but the problem of the Drummonds' request was submitted to a "staffing." This was a conference which included Osgood's supervisor, Mrs. Grape, Mrs. Dallinger, the adoption supervisor, and one or two other personnel. It is apparent that none of these staff people had seen either Timmy or the Drummonds. Miss Osgood's description of what occurred 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 experience 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 face too many problems as a result of that kind of placement.

So after, you know, some discussion was made about that, the decision was made for Miss Grape and Miss Dallinger to talk with the Drummonds and to try to express, you know, some of our concerns about what we felt was in Timmy's best interest; and, also, the question was brought up that if the Drummonds were not amenable to our plan, 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 they 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 interest to be adopted by a black couple." (Emphasis added.)

On March 10, Mrs. Grape and Mrs. Dallinger had the Drummonds bring Timmy to the office to carry out the decision made at the "staffing." Mr. Drummond testified that at the conference: "Mrs. Grape said she thought Timmy should be adopted by a black family." The following testimony then followed:

"Q. 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 terminology they used, or black family or black parents?

A. Black family, I believe.

Q. What was your response to that?

A. Well, my wife and myself thought that we should be able to adopt Timmy, that we would like to have him.

Q. All right, Was there anything said about it being to his advantage for him to grow up in the black community?

A. I think Miss Grape said something to that effect.

Q. Did you and your wife ever accept the fact that you couldn't adopt Timmy, that he had to be adopted by black parents?

A. No, we did not.

Q. Did you ever do anything about it after you were told this March meeting, what did you do after that, toward adopting Timmy?

A. Well, we told them we would like to adopt him and told the case worker."

Mrs. Drummond's testimony as to this interview was as follows:

"Q. Okay. What did they tell you about whether they were going to permit you to adopt him?

A. 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.

Q. Did you accept that at that time?

A. I tried to accept it. But I could not.

Q. What further steps did you take to try to adopt Timmy?

A. I called and talked with the case workers and repeatedly told them that we wanted to adopt Timmy. And then when Mrs. Osgood 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.

Q. Okay. Back up to the March meeting. Were you told at that meeting that you were too old to adopt him?

A. No.

Q. When did you move to Douglas County?

A. Within eight months.

Q. Did anyone ever tell you it would hurt your chances to adopt Timmy if you moved to Douglas County?

A. No, Ma'am.

Q. Would you have moved to Douglas County had you known?

A. No, indeed, had we known.

Q. Are you willing to return to the City of Atlanta?

A. We're packing to move back to Fulton County to the City of Atlanta now.

Q. In the March meeting, did Miss Dallinger 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. Drummond, foster parents, were in the office 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 heritage. They did some superficial denial of the idea that this fact would cause Timothy any problems in remaining in their home. They did not, however, push for them to be allowed to adopt Timothy. As a matter of fact, they stated they could let Timothy go to a young, energetic, religious, adoptive couple. They expressed primary concern that he not be moved from their home to another foster home as they believed he would not receive the quality of care they are giving him in another foster home. They feel that separation from Timothy will tear their hearts out but that they can do it because it would be best for Timothy in the long run. They seem quite accepting when Ms. Grape and Ms. Dallinger verbalized 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 rehabilitate her before a final decision is reached. We estimated a minimum of six months to one year before we will even know if adoption is the plan for Timothy. Ms. Dallinger explained that even the ( ) months more would be involved in working with him to fully know Timothy, select the right adoptive home, and slowly move Timothy. Ms. Drummond cried in anticipation of eventual separation. Both Mr. and...