By SAM REYNOLDS
(CN) – A Kansas appellate panel acknowledged that two ex-foster parents had “suffered a devastating violation of their 14th Amendment rights,” but ultimately sided with the social workers who removed the couple’s would-be adopted son from their care.
The opinion, written by Judge Carlos F. Lucero of the 10th Circuit, describes an “avoidable tragedy” that left foster parents Ann and Greg Elwell grieving an “unrectifiable loss.”
“This case grows out of an avoidable tragedy. Ann and Greg Elwell were in the process of adopting T.S., a young boy who had been in their care almost his entire life. But approximately one month after a complaint of emotional abuse of another child in the Elwells’ care – which all parties agree did not raise concerns for T.S.’s safety or welfare and was subsequently deemed unsubstantiated – state officials withdrew the license allowing the Elwells to care for T.S. and removed him from their home without any advance notice. Despite a state court’s finding that the agency acted wrongfully in removing the boy, he was never returned to them.”
By the time that court’s ruling took effect, “T.S. had been living with another family for almost a year, and the court concluded that T.S. had significantly bonded with that family and that removing him from his new home would be more disruptive than beneficial,” the opinion says.
Judge Lucero then spells out the roles of defendants Bob Byers and Lynnea Kaufman, social workers with state-run Social and Rehabilitative Services.
“Despite the revocation of their [Kansas Department of Health and Environment] license, T.S. could have remained in the Elwells’ care if an adoption placement agreement had been completed. KDHE indicated that it would have been willing to delay withdrawing the license to allow this step to be taken. Defendants Kaufman and Bob Byers, however, determined that SRS would not sign an adoption consent form, and thus elected not to offer an adoption placement packet.”The opinion says that “both Kaufman and Byers candidly admitted that there were no immediate safety concerns about leaving T.S. in the Elwells’ home.”
The Elwells took their cause to Federal Court, alleging “violations of procedural and substantive due process rights.”
Lucero explains: “The defendants asserted qualified immunity with respect to both claims. On a motion for summary judgment, the district court granted qualified immunity on the substantive due process claim, but denied it as to the procedural due process claim. Kaufman and Byers now appeal the denial of qualified immunity.”
While Lucero expressed the panel’s sympathy for the Elwells’ grievances, he conceded the legal grounds to Kaufman and Byers.
“The Elwells suffered a devastating violation of their Fourteenth Amendment rights, and we are not insensitive to their plight. But given the state of the case law, we must reverse the district court’s qualified immunity determination.”
The opinion says that the district court erred in ruling that a Kansas statute affords the Elwells a “constitutionally protected liberty interest” to develop a familial bond with their foster children.
Lucero agreed with the Elwells that Kan. Stat. Ann. § 38-2258 “states that SRS ‘shall not change the placement of the child, except for the purpose of adoption, unless the change is approved by the court.”
But the panel ultimately determined that “this provision does not mandate any particular outcome of the procedures at issue; rather, it simply sets the rules as to a child’s placement pending that outcome. And because the statute does not direct that ‘a particular outcome must follow,’ it cannot give rise to a constitutionally protected liberty interest.”
Lucero continued: “In other words, ‘process is not an end in itself’; when state law creates a mandatory procedure but does not guarantee a particular substantive outcome, it does not confer a protected liberty interest.”
Lucero was joined by Judges William Holloway and Scott Matheson of the Tenth Circuit.
Ann and Greg Elwell were represented by Charles Schimmel with Beam-Ward, Kruse, Wilson, Wright & Fletes of Overland Park, Kan.
Bob Byers and Lynnea Kaufman were represented by Social and Rehabilitative Services attorney Carl Ossman.
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