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AAAA POSITION ON
CHILDREN'S
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In re Bridget R., 49 Cal.Rptr.2d 507 (Cal. App. 1996), review denied Cal. Sup. Ct. (1996).
The Bridget R. decision expands the nature of a child's rights beyond the recognition that it is constitutionally permissible for states to provide a custody hearing if an adoption is dismissed or set aside. The California court ruled that some kind of custody or guardianship hearing even may be constitutionally compelled in the wake of a failed adoption. Id. The court found that children have both procedural and substantive liberty interests protected under the due process clauses of the Fifth and Fourteenth Amendments, and that these interests include maintaining familial ties with prospective adoptive families with whom they have been previously placed pursuant to an apparently valid state adoption with an expectation of permanency. These interests also include protection against precipitous or traumatic removal from an existing custodial environment without inquiry into whether the removal would be detrimental to the child, whether some less detrimental alternative is available, and whether removal and "return" to a birth parent is justified by a competing and equally compelling constitutional interest. Id. See also, In re Jasmon O., 878 P.2d 1297 (Cal. 1994) ("after an extended period of foster care [because of parental neglect or incapacity], it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody, and companionship of the child....children, too, have fundamental rights").
It is the position of the Academy that whenever an adoption is challenged after a child has become part of a family for a sufficient time and under proper legal process to give rise to a reasonable expectation of permanency, the United States Constitution mandates that a hearing be held in which the child's fundamental liberty interest in his/her established family is considered before it is disrupted.
It has long been recognized that children are persons with rights protected by the United States Constitution. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976) ("Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority."); In re Gault, 387 U.S. 1, 13 (1967) (stating that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone"). The realm of personal family life is a fundamental interest protected by the Fourteenth Amendment to the United States Constitution. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (there is an "historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment"); Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977); Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987) (stating that a child's interest in continued companionship and society of parents is a cognizable liberty interest); Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir. 1989) (adoptive parents, like biological parents, have a fundamental liberty interest in the familial relation). This fundamental right belonging to both parents and children also has been explicitly recognized by states other than California. See, e.g., Reist v. Bay Circuit Judge, 241 N.W.2d 55, 62 (Mich. 1976) (holding that the rights of parent and child in their "fundamental human relationship" are encompassed within the term "liberty"); Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981) (recognizing liberty interest in mutual relationship between child and parent).
The United States Supreme Court in Smith v. Organization of Foster Families, 431 U.S. 816, 844 (1977) stated that "biological relationships are not the exclusive determination of the existence of a family." As the Court recognized,
Id. (citation omitted). See also Lehr v. Robertson, 463 U.S. 248, 249, 261 (1983) (a "developed parent-child relationship" and not the "mere existence of a biological link" merits constitutional protection); Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984) ("family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life."). These cases recognize the importance of the reality of the existing family. A federal district court in California in Brown v. County of San Joaquin, 601 F. Supp. 653 (E.D. Cal. 1985), while discussing the protected interest of a foster parent, also noted the importance of this reality:
Id. at 664-65 (citations omitted).
These considerations should apply whenever legislatures and courts consider efforts by noncustodial contestants to assert custodial or visitation rights with a child who is being adopted or is eligible for adoption. The child's interest in having his/her immediate familial relationship undisturbed must prevail in the face of unwarranted intrusion by those who do not have an established relationship with the child beyond a mere biological link. See, e.g., Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993) (striking down Tennessee's former grandparent visitation statute as unconstitutional when applied to a stable family absent a showing of substantial harm to the child if visitation were terminated); Williams v. Williams, 24 Va. App. 778 (1997) (the parents' right to autonomy in child rearing is a fundamental right protected by the Fourteenth Amendment, and state interference with that right must be justified by a compelling state interest; "the primacy of the parent-child relationship" requires proof that harm or detriment to the welfare of the child would result without visitation, before visitation may be ordered over the united opposition of the child's parents). The Academy believes these fundamental interests are not merely "parental rights," which these courts protected, but familial rights that belong to children as well as to parents.
The United States Government seems at last to have recognized children's rights to a stable home. In the recently enacted Adoption and Safe Families Act of 1997, a child's health and safety are deemed paramount, and permanency may override reunification as goal in foster care. Similar goals are evident in Adoption 2002: The President's Initiative on Adoption and Foster Care Guidelines for State Legislation Governing Permanence for Children.
This analysis also should be part of the consideration of tribal rights with respect to the adoption of children with Native American heritage. In this regard, the Academy supports the court's position in the Bridget R. case discussed above. Children's existing or impending stable family lives should not be interrupted absent a clear demonstration of cultural, political and psychological ties that are entitled to constitutional protection. Therefore, the Academy supports procedural amendments to the Indian Child Welfare Act that would provide opportunities for courts to examine and weigh these competing interests during the adoption process.
Finally, a child's liberty interest in family stability must be considered even when a failed adoption is meritoriously challenged, but results in protracted litigation. Children are the innocent victims of such litigation and the grief that it inflicts. They should not be awarded to the "winner" as if they were a prize, whether that winner is an adoptive parent or a biological parent. Children are blameless. Depriving a child of his/her established, psychological family ties without consideration of the harm he/she will suffer infringes upon his/her procedural due process rights. Therefore, under some circumstances, even a fit biological parent's custodial rights may be limited because of a child's independent right to remain in the only custodial environment he/she has known. See e.g., In re Appeal in Pima County Juvenile Severance Action no. 2-114487, 876 P.2d 1121 (Ariz. 1994) (rights of a father who fails to grasp parental "opportunity quickly, diligently, and persistently" may be terminated if the court finds that it is in the child's best interest, even if the father's failure is understandable due to the mother's efforts to thwart him); In re Baby Boy C., 581 A.2d 1141 (D.C.App. 1990) (a presumptively fit thwarted father's right to veto a proposed adoption may nonetheless be overcome by clear and convincing evidence that it is in the best interest of the minor for the adoption to proceed); In re Robert O., 604 N.E.2d 99 (N.Y. 1992) (promptness of biological father's actions to assert parental rights is measured in terms of the baby's life, not by the onset of the father's awareness); State ex rel R.E., 645 So.2d 205 (La. 1994) (putative father has burden of persuading court that he preserved his opportunity interest by taking concrete steps to preserve his relationship to the child); Sorentino v. Family & Children's Society of Elizabeth, 367 A.2d 1168, 1170 (N.J. 1976) (because the child had been in the custody of the adoptive parents for over two and a half years, the adoptive parents were entitled to a hearing on "whether transferring custody of the child to plaintiffs . . . will raise the probability of serious harm to the child"); Sorentino v. Family & Children's Society of Elizabeth, 378 A.2d 18 (N.J. 1977) (Upon remand and appeal, custody with the adoptive parents was undisturbed); In re Guardianship of J.R., 416 A.2d 62 (N.J. Super. 1980) (following Sorentino, and holding that the parental rights of a biological parent may be terminated without a showing of unfitness where "foster care has been permitted for so extended a period as to have resulted in the virtual creation of a new parent-child relationship, albeit not one based upon blood but upon love, affection and need, and a trial judge, with evidential justification, concludes that disruption of that new relationship, suddenly or gradually, would damage the child").
In conclusion, the Academy believes that from the child's perspective, the relationship with his/her adoptive family is not different from the most traditional parent-child relationships protected in the past from state interference by courts. See e.g., Santosky v. Kramer, 455 U.S. 745 (1982); Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); and Meyer v. Nebraska, 262 U.S. 390 (1923). The Academy is asking courts and legislatures to recognize that children have a constitutionally based liberty interest in the protection of their established families, rights which are at least equal to, and we believe outweigh, the rights of others who would claim a "possessory" interest in these children.
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