Smith v. Organization of Foster Families, 431 U.S. 816 (1977)

Individual foster parents and a foster parent organization challenged the New York statutory procedures for removal of foster children from foster homes. They argued that the New York procedures violated the due process clause of the Fourteenth Amendment. According to the Fourteenth Amendment, ‘‘no State shall deprive any person of life, liberty, or property, without due process of law.’’ The majority opinion, delivered by Justice Brennan, held the challenged procedures to be constitutional. Despite the ultimate decision, the case has become more powerful because of the language used by the Court.

Before the Court’s legal analysis, it launched a strong, multiparagraphed disparagement of the foster care system in New York in the 1970s. Relying on empirical studies that demonstrated racial and socioeconomic bias of the foster care system, the Court criticized the seeming ‘‘limbo’’ in which foster children were left to wallow. Cognizant of its limited role in bringing about change, it suggested reform through the legislature.

Turning to the analysis under the Fourteenth Amendment, the court set forth a two-part inquiry: first, does a protected ‘‘interest’’ exist; and if so, what process is due. Accordingly, of initial concern was whether or not a foster family had a ‘‘liberty interest’’ in its survival as a family. Ultimately, the foster parents likened the foster family to that of a more traditional biological family. Curiously, the Court avoided this issue and decided the case on narrower grounds (see later). Nevertheless, dicta in the opinion suggested a particular view on the status of nonbiological families: biological relationships are not the exclusive determination of the existence of a family; the importance of familial relationships stem from the emotional attachments that derive from the intimacy of daily association and from the role it plays in promoting a way of life through the instruction of children; a foster family is not mere collection of unrelated individuals. This language seemed to indicate that a nontraditional family could, in fact, have a liberty interest in its own existence. The court was careful, however, and limited its language by suggesting that whatever liberty interest might exist in the foster family as an institution would not trump an interest derived from a blood relationship should such a conflict arise.

Instead of formally holding that a liberty interest actually existed, the Court simply assumed one did and proceeded to the second phase of its due process inquiry. The Court was next left to determine just what sort of process was due to the foster family in this particular context. Before a person is deprived of a protected interest, he or she must be afforded the opportunity for some kind of hearing. Due process is flexible concept, and as such, the hearing granted must be appropriate to the nature of the case. The Court found that the New York procedures, which included written notice, an opportunity to request a hearing, and the right to appeal, were the appropriate amount of ‘‘process’’ to protect the liberty interest (whatever that may be) of the foster parents.

This case has become a valuable one—not so much because of the ultimate decision, but because of the language used by the Court in two different areas: its description of the foster care system in New York; and its discussion of what constituted a ‘‘liberty interest’’ worthy of constitutional protection.

KERRY L. MUEHLENBECK

References and Further Reading

• Guggenheim, Martin, Alexandra Dylan Lowe, and Diane Curtis. The Rights of Families: The Authoritative ACLU Guide to the Rights of Family Members Today (American Civil Liberties Union Handbook). Southern Illinois University Press October 1, 1996.
• United States Supreme Court—Parental Rights Cases, https://www.liftingtheveil.org/supreme-court.htm.