Procopio v. Johnson

• Decision Date: 06 May 1993
• Docket Number: No. 92-1913,92-1913
• Citation: 994 F.2d 325
• Parties: Joseph and Marjorie PROCOPIO, Plaintiffs-Appellants, v. Gordon JOHNSON, Former Director, Illinois Department of Children and Family Services; Jess McDonald, Former Interim Director, Illinois Department of Children and Family Services; Sue Suter, Former Director, Illinois Department of Children and Family Services; Sterling M. Ryder, Director, Illinois Department of Children and Family Services; Hephzibah Children's Association, a Not-For-Profit Corporation; and Lutheran Child and Family Services, a Not-For-Profit Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 325

994 F.2d 325

61 USLW 2682

Joseph and Marjorie PROCOPIO, Plaintiffs-Appellants, v. Gordon JOHNSON, Former Director, Illinois Department of Children and Family Services; Jess McDonald, Former Interim Director, Illinois Department of Children and Family Services; Sue Suter, Former Director, Illinois Department of Children and Family Services; Sterling M. Ryder Director, Illinois Department of Children and Family Services; Hephzibah Children's Association, a Not-For-Profit Corporation; and Lutheran Child and Family Services, a Not-For-Profit Corporation, Defendants-Appellees.

No. 92-1913.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1992.

Decided May 6, 1993.

William F. Dolan (argued), Robert P. Cummins, Bickel & Brewer, Chicago, IL, for Joseph and Marjorie Procopio.

Mitchell Ware, Frank M. Grenard, Eric S. Wachspress, Dianne McCollough, Robin P. Charleston, Jones, Ware & Grenard, Chicago IL, for Sue Suter.

Dennis Minichello (argued), Michael C. O'Neil, Keck, Mahin & Cate, George F. Galland, Jr., Davis, Miner, Barnhill & Galland, Chicago, IL, for Hephzibah Children's Ass'n.

William E. Spizzirri, Nancy J. Arnold, Kralovec, Jambois & Schwartz, Harvey J. Cohen, Merrill C. Hoyt, Aries, Hoyt & Taden, Chicago, IL, for Lutheran Child and Family Services.

Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and CRABB, District Judge. ^*

CUDAHY, Circuit Judge.

The plaintiffs, hoping to adopt a child, became foster parents to a little girl born to an active drug addict. They nursed her through chronic narcotic withdrawal and cared for her for five years. When the birth parents successfully sought to have custody of the girl returned to them, the plaintiffs sued, asserting a violation of 42 U.S.C. § 1983 in addition to state law claims. The district court dismissed the case. We affirm.

I.

The lamentable story of Ashley K.'s childhood began on April 27, 1984, when Ashley was born to a drug-addicted woman who had used heroin and cocaine and prostituted herself during the pregnancy. ¹ On May 3, 1984, Ashley was found to be a neglected and dependent minor and was placed in the custody of the Illinois Department of Children and Family Services (DCFS).

About the same time, the plaintiffs, Joseph and Marjorie Procopio, contacted defendant Lutheran Child and Family Services (LCFS) to inquire about how they might adopt a child. LCFS informed the Procopios that they would have a better chance to adopt if they became licensed foster parents. The Procopios complied, received their foster parents license in April 1984 and became foster parents to Ashley about a month later. Apparently LCFS and DCFS officials repeatedly led the Procopios to believe that almost no significant barriers would prevent their adoption of Ashley and that she was "97% adoptable." In the interest of Ashley K., 212 Ill.App.3d 849, 156 Ill.Dec. 925, 927, 571 N.E.2d 905, 907 (1 Dist.), appeal denied, 141 Ill.2d 541, 162 Ill.Dec. 489, 580 N.E.2d 115 (1991).

During the first 16 months of Ashley's life, she was visited by her mother three times and her father twice. ² Ashley's mother, who had a significant arrest record for theft, child neglect, prostitution, forgery and possession of stolen property, was reported using heroin in March 1985. The DCFS nevertheless developed a service plan on April 25, 1985, to work toward the goal of returning Ashley to her parents and to maintain an older sister and brother in the family home as well. On May 8, 1985, however, the state circuit court found Ashley's parents, who remained unmarried but who had lived together since 1980, unfit to care for her and granted guardianship to the DCFS. Ashley continued to experience withdrawal tremors and high fevers, but was otherwise progressing well with the Procopios. The September 4, 1985, update of the DCFS service plan continued to indicate a goal of returning Ashley to her biological parents.

In February 1986, Ashley's mother, who was completing a methadone drug treatment program, was charged with child abandonment, and her son and older daughter were taken into protective custody. She was arrested for prostitution in March 1986. On December 9, 1986, the circuit court found her to be an unfit parent, and the DCFS received guardianship of the two older children.

Two days later Ashley's mother entered an in-patient drug program, but left the program in March 1987 prior to completion. She enrolled instead in an outpatient methadone maintenance program. In June 1987 Ashley's mother purchased a house with her own mother; Ashley's father, who lived in the house with Ashley's mother and grandmother, also entered a methadone maintenance program.

Ashley's biological parents filed a juvenile court petition on December 29, 1988, seeking custody of Ashley. Although various psychological reports recommended that Ashley should remain with the Procopios, DCFS supported her return to her biological parents. In April 1989, DCFS began working with defendant Hephzibah Children's Association on a plan to effect Ashley's move. In July 1989, DCFS took Ashley from the Procopios and placed her with Hephzibah. At this point Ashley's parents had not used drugs for more than a year and had completed a DCFS service plan. On August 29, 1989, the juvenile court returned custody of Ashley to her natural parents. ³

On August 29, 1992, the Procopios filed a three-count complaint in federal court against the DCFS, DCFS directors, Hephzibah and LCFS. This case presents a story of what must have been a severe and prolonged emotional trauma to Ashley, but the problem presented to the federal courts is a narrower one than that. The Procopios asserted one federal claim under 42 U.S.C. § 1983 alleging violation of their Fourteenth Amendment due process rights and two state claims alleging fraudulent misrepresentation and intentional infliction of emotional distress. Concluding that the Procopios failed to demonstrate that their long-term foster relationship with Ashley or the DCFS's assurances of adoption created a liberty interest, the district court dismissed the section 1983 claim for failure to state a claim upon which relief can be granted. Procopio v. Johnson, 785 F.Supp. 1317, 1320 (N.D.Ill.1992). The court declined to exercise supplemental jurisdiction over the remaining state claims and dismissed them as well. Id. The Procopios appeal.

II.

We review the district court's dismissal of the plaintiffs' claims de novo. The Procopios' section 1983 action requires them to prove that they have a liberty interest in their family relationship with Ashley that the state could not impair without due process. ⁴ If they demonstrate such an interest, they then must show that the process accorded them was not constitutionally adequate. The Procopios contend that their liberty interest in their family relationship with Ashley derives from Illinois state law and from the federal statutory scheme governing reimbursement for various state and child welfare services, the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679a (1980). We address these in turn.

The power of the state to regulate biological family relationships is limited. See, e.g., Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). How far that limitation extends to nonbiological families is less clear. The Supreme Court has recognized that biological relationships are not the "exclusive determination of the existence of a family" and that emotional attachments play a role as well. Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 843-44, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14 (1977). But the Court has stopped short of deciding that foster family arrangements achieve the status of a liberty interest that states cannot disrupt without due process. See id. at 847, 97 S.Ct. at 2111. ⁵ The scope of the liberty interest at stake, according to the Court, is appropriately ascertained from the parties' expectations and entitlements as they are set out in state law. Id. at 846, 97 S.Ct. at 2110; Lindley v. Sullivan, 889 F.2d 124, 130 (7th Cir.1989) (stating that a foster family's rights arise from state statute).

The Procopios contend that two different state law provisions support their claim that their relationship with Ashley amounts to a liberty interest. First, they argue that the Illinois Adoption Act confirms that foster parents are to be preferred above all others as the foster child's permanent family. Specifically, paragraph 1519.1 provides that the child's legal guardian "shall give preference and first consideration to [the foster parents'] application over all applications for adoption of the child but the guardian's final decision shall be based on the welfare and best interest of the child." Ill.Rev.Stat. ch. 40, p 1519.1(b).

We agree with the district court that this statutory language does not suffice to create a liberty interest in the Procopios' family relationship. Notwithstanding the preference state law grants to foster families seeking to adopt their foster children, this priority does not rise to the level of an entitlement or expectancy. Cf. Johnson v. Burnett, 182 Ill.App.3d 574, 579, 131 Ill.Dec. 517, 522, 538 N.E.2d 892, 897 (1989) (describing a foster parent's role in Illinois as "that of a temporary way station on the road of a child's life," not a family for whom a future permanent situation is guaranteed). State law still requires that foster families who wish to adopt obtain the permission of the natural parents, Ill.Rev.Stat. ch. 40 p 1510(a), or of the legal guardian if the natural parents' rights have been terminated, as they were here. Id. at pp 1510(b), 1519.1(a). Even given that permission, the Juvenile Court has the "sole discretion" to make the "final determination" about the adoption. Id. at p 1519.1(c). Ashley's guardian, the DCFS, never granted that consent, nor did the Procopios receive juvenile court approval of...