Lipscomb By and Through DeFehr v. Simmons

• Citation: 884 F.2d 1242
• Decision Date: 07 September 1989
• Docket Number: No. 87-4079,87-4079
• Parties: Sheri LIPSCOMB, By and Through her next friend, Carolyn DeFEHR; Autumn Scalf, and William Scalf, by and through their next friend Gloria Self, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Dan SIMMONS, individually and in his official capacity as Acting Director, Department of Human Resources of the State of Oregon; and Jess Armas, individually and in his official capacity as Acting Assistant Director, Department of Human Resources of the State of Oregon and Acting Administrator, Children's Services Division, Department of Human Resources of the State of Oregon, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1242

884 F.2d 1242

58 USLW 2170

Sheri LIPSCOMB, By and Through her next friend, Carolyn DeFEHR; Autumn Scalf, and William Scalf, by and through their next friend Gloria Self, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Dan SIMMONS, individually and in his official capacity as Acting Director, Department of Human Resources of the State of Oregon; and Jess Armas, individually and in his official capacity as Acting Assistant Director, Department of Human Resources of the State of Oregon and Acting Administrator Children's Services Division, Department of Human Resources of the State of Oregon, Defendants-Appellees.

No. 87-4079.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 7, 1988.

Decided Sept. 7, 1989.

Emily Simon and Mark Kramer, Simon Kramer & Fithian-Barrett, Portland, Or., for plaintiffs-appellants.

Rives Kistler, Asst. Atty. Gen., Salem, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before HUG, FLETCHER and NELSON, Circuit Judges.

PER CURIAM:

Oregon, like every other state, sometimes removes children from their parents' custody because of abuse or neglect. The State often places these children temporarily in foster homes, either with relatives or others. The state and federal governments provide funds to defray the costs of caring for these children. The federal scheme, Title IV-E of the Social Security Act, 42 U.S.C. Secs. 670-676 (1988), provides funds for many foster children, without regard to whether the people with whom the children are placed are relatives. See Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979).

Oregon has a separate system for funding the foster care of children who are not eligible under Title IV-E. The State assists only children who are placed with foster parents who are not related to them, however. See Oregon Revised Code (O.R.C.) 418.625(2). Children who are placed with relatives may qualify for federal assistance through Aid to Dependent Children. These payments are lower than either the state or federal foster-care payments and are unavailable to many children.

The named appellants, Sheri Lipscomb and Autumn and William Scalf, are three children residing in Oregon. Sheri Lipscomb suffers from multiple handicaps. All three children were taken by the State from abusive and negligent parents and have close relatives who now wish to care for them. Sheri's aunt and uncle, who do not have medical coverage or private medical assistance for Sheri, and who do not receive state foster care payments or medical benefits on her behalf because they are related to Sheri, are afraid that they will be forced to give Sheri up because of their inability to pay for her medical bills. Autumn and William Scalf's aunt and uncle, who provided a foster home for the children, were forced to give up the children because the State did not provide the children with foster care assistance, and the aunt and uncle were concerned that they would be financially unable to meet the children's needs. The State then placed the Scalf children with unrelated foster parents and now provides the children with foster care benefits and related medical coverage. The parties stipulate that Oregon's denial of state foster care benefits to children who are also ineligible for Title IV-E benefits in some cases has prevented families from providing foster homes to related children who are in the State's custody. The parties also stipulate that other children, like Autumn and William Scalf, have had to leave the homes of relatives who were acting as foster parents because the relatives believed that they could not properly provide for the children without assistance. Some of these children have been placed with nonrelatives and others remain without foster parents in the care of the State.

Sheri Lipscomb and Autumn and William Scalf sue on behalf of all needy and dependent children who have been removed from their homes by the State and placed in foster care, and who have been denied state-funded foster care benefits and medical assistance solely because they are related to their foster parents. They challenge as unconstitutional the State's denial of foster care funds to children whose relatives act as foster parents. The district court granted summary judgment to the defendants, finding that Oregon's statute did not violate the equal protection clause. Plaintiffs timely appeal. We reverse.

Standard of Review

We review the propriety of summary judgment de novo. See Blau v. Del Monte Corp., 748 F.2d 1348, 1352 (9th Cir.), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985).

Discussion

I. The appellants have a constitutionally protected liberty interest in being placed with fit relatives

Appellants contend that Oregon's denial of foster care funds to children who live with related foster parents violates their constitutionally protected liberty interest in choosing to live with family members. The constitutional right to associate with family members is protected by the due process clause of the fourteenth amendment. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982); accord Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 555, 54 L.Ed.2d 511 (1978). No right is more sacred, ¹ and this right can be abrogated only to protect other very important interests. See Santosky, 455 U.S. at 753, 102 S.Ct. at 1394; Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974). The Supreme Court has held that the constitutionally protected "family" extends beyond the nuclear family. Moore v. East Cleveland, 431 U.S. 494, 504, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977) (plurality opinion) (holding that a grandmother and her two grandsons constituted a "family" entitled to constitutional protection and invalidating a zoning restriction that prohibited them from living together). The fourteenth amendment protects extended family members' right to live together because the American tradition "is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins ... sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition." Id.

Appellants, children who were removed by the State from their parents' homes for abuse or neglect, have a constitutionally protected liberty interest in being placed with willing and fit close relatives. The Supreme Court, in deciding the question whether a particular relationship is constitutionally protected, has considered three factors: the presence or absence of a biological relationship; whether the origins of the relationship are natural, separate and apart from state law; and whether protection of the interest in the relationship derogates from the liberty interests of the natural parents. See Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 843-47, 97 S.Ct. 2094, 2109-11, 53 L.Ed.2d 14 (1977) [hereinafter Smith v. OFFER ] (holding on the basis of these three considerations that an (unrelated) foster family does not have a constitutionally protected liberty interest in receiving due process prior to return of the child to its natural parents). All three factors militate in favor of a protected liberty interest in this case. The children's relationships with their aunts and uncles are biological; such relationships are part of the social order recognized by the Supreme Court in Moore as deeply rooted in American history and tradition; ² and protection of children's interest in living with family members, rather than with strangers or than in the care of the State, when they cannot live with their parents, does not threaten the parents' rights. ³ As the Supreme Court held in Moore, "the choice of relatives in this degree of kinship to live together may not lightly be denied by the State." Id. at 505-06, 97 S.Ct. at 1939. The circuit courts have recognized that constitutional protection extends to grandparents' interest in the custody and care of their grandchildren, see Drollinger v. Milligan, 552 F.2d 1220, 1226 (7th Cir.1977), to the custodial interest of a half-sister with whom the children had lived as a family, see Rivera v. Marcus, 696 F.2d 1016 (2d Cir.1982), and to a mother and sister in their relationship with their son and brother, see Trujillo v. Board of County Comm'rs, 768 F.2d 1186, 1189 (10th Cir.1985). We hold that the fundamental right of children to live with close relatives extends to named appellants in this case, who seek to live with their aunts and uncles. ⁴

II. The State must assist children in its custody to exercise their constitutional right to live with fit members of their family

The State burdens the constitutional right to associate with family members when it adopts policies that prevent family members from living together. Moore, 431 U.S. at 498-99, 97 S.Ct. at 1935. Appellant Sheri Lipscomb would like to continue to live with her aunt and uncle. Appellants Autumn and William Scalf wish to return to the home of their uncle and aunt, who were forced to give them up to strangers. By denying funds to the appellants--aid which they need in order to exercise their constitutional right to live with their relatives--the State of Oregon burdens the appellants' constitutional right to associate with their families.

Appellees do not dispute that the children have a fundamental right to live with their family members. ⁵ Indeed, appellees have recognized this right in an administrative regulation and determined that placement with relatives is generally in the best interest of the child. ⁶ Rather, appellees argue that the State has no constitutional obligation to fund the children's exercise of their constitutional right. Appellees rely on a series of Supreme...