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Ninth Circuit:
Same-Sex Couple Not Denied Constitutional Rights When Foster Child Was Taken From Their Home
By a MetNews Staff Writer
A same-sex married couple that had a teenage foster child taken from their home by a social worker two hours after he had expressed to them a desire to reside, instead, with a “mom and dad” did not suffer a cognizable constitutional violation, the Ninth U.S. Circuit Court of Appeals has declared.
In a memorandum opinion filed Thursday, a three-judge panel—comprised of Circuit Judges Kim Wardlaw and Andrew Hurwitz, joined by District Court Judge Stephen R. Bough of the Western District of Missouri, sitting by designation—affirmed a Sept. 23, 2020 dismissal with prejudice of the couple’s six federal claims and dismissal without prejudice of their four claims under California law.
The plaintiffs, San Diego attorney Sara M. Kelley of the Sibus Law Group and her spouse, Teresa L. Smith, chief executive officer of a Chula Vista non-profit corporation, were in the process of adopting the boy, identified in the litigation as “Teenager.” He was removed from their abode on June 17, 2018 by Jessica Ayala, then an employee of the county’s social welfare agency, whom he had apparently contacted that day.
Equal Protection Denial
Kelley and Smith sued the county, Ayala (now a San Diego attorney), and seven other county employees for alleged violation of their federal constitutional rights, including equal protection. They alleged in their first amended complaint that on Father’s Day in 2018, Ayala “entered Plaintiffs’ home and demanded they ‘suspend’ talking about ‘adoption’ and ‘sexual orientation,’ and then demanded they find a place for Teenager to spend the night,” adding:
“The social worker left with Teenager to take him to his friend’s home to spend the night. Teenager never returned home.”
Shortly before the removal of the youth, Ayala spoke by telephone with defendant Margo Fudge, a supervisor. The complaint recounts that Fudge, in October 2018, made the statement that the boy was spirited away that day because the foster parents were “ ‘pushing’ gay” on him.
It comments:
“If Plaintiffs were not ‘gay’ themselves, then there would have been no reason for the abrupt removal; the demand would have never been made of a same-sex couple. Discrimination based on Plaintiffs’ sexual orientation and/or gender was the principle [sic] motivating factor for the improper removal that day.”
The pleading alleges, in particular, a violation of the federal and state constitutional equal protection clauses, setting forth:
“Defendants discriminated against Plaintiffs and denied them fair and equal treatment on the basis of Plaintiffs’ sexual orientation and/or gender.”
District Court Ruling
Dismissal of the first amended complaint (“FAC”) came in an order by then-District Court Chief Judge (now Senior Judge) Larry Alan Burns of the Southern District of California. He wrote:
“Plaintiffs’ Equal Protection claim depends on inapposite and question-begging comparisons. Once the comparisons are framed more aptly, so as to compare similarly-situated people and groups, the claim evaporates.”
The judge explained:
“Importantly, the Teenager himself requested to be placed with opposite-sex parents. The relevant question is not whether Defendants’ behavior would have been different if the Teenager had wanted to be placed with the Plaintiffs; clearly it would have been. A more apt question would be, if the Teenager had been placed with an opposite-sex couple and expressed the desire to be placed with a same-sex couple, would Defendants have honored that request? Nothing in the FAC suggests they would have disregarded his preference or forced him to remain there and be adopted against his will.”
Burns added:
“Plaintiffs make much of the fact that they were supposedly ‘pushing gay’ on the Teenager, and that they themselves are gay. But the FAC provides no reason for supposing the basis for Defendants’ objection was specifically because they were gay. Rather, it appears Defendants were concerned because the Teenager was uncomfortable and complaining, and because he felt that Plaintiffs were distorting his sexuality. A more apt comparison would be what Defendants would have done if opposite-sex couples had engaged in the same or analogous behavior. Nothing in the FAC or in Plaintiffs’ briefing suggests, even indirectly, that Defendants would have tolerated it or ignored a child’s complaints.”
Substantive Due Process
Addressing the plaintiff’s substantive due process claim, Burns said:
“De facto parents have no fundamental liberty interest in remaining in contact with the children they wish to adopt….Whether, and to what extent prospective adoptive parents have a fundamental liberty interest in custody is an open question….That being said, any rights they may have had were greatly vitiated by the Teenager’s exercise of his own rights. For example, he had an absolute right not to be adopted against his will….Before the Teenager was removed, he had made clear he did not want to live with Plaintiffs or be adopted by them. This new barrier to adoption represented a changed circumstance. He persisted in his decision, and was eventually placed with another family, an opposite-sex couple.”
Burns also found that a retaliation claim was not validly stated. As he saw it:
“The only significant act that might amount to retaliation is Defendants’ failure or refusal to place foster children with Plaintiffs since the dispute arose. But until the issue of the Teenager’s possible return to Plaintiffs’ household was resolved, it is not surprising that new foster children were not placed there. The allegations do not plausibly suggest that this was an act of retaliation.”
The judge said that because no federal claims were validly set forth, there was no need to discuss whether the county employees enjoyed qualified immunity.
Ninth Circuit’s Decision
The Ninth Circuit did not specifically address the plaintiffs’ equal protection claim. It did say:
“Appellants fail to identify a federal constitutional right of which they have been deprived. Because de facto and foster parents do not have federal constitutional rights to the custody of minors in their care, Appellants’ substantive due process rights were not violated when Teenager was removed from their home….Moreover, Teenager had an absolute right under California law to withhold consent to his adoption by Appellants, and without his consent. Appellants were not permitted to adopt him.”
It added:
“Appellants’ retaliation claim fails because they have not established that their engagement in a constitutionally protected activity was a ‘substantial or motivating factor’ in Teenager’s removal from their care….Further, because Teenager was not returned to Appellants’ home nor were additional foster children placed there. Appellants’ speech within their home could not have been chilled by the social worker’s admonishment against the future discussion with Teenager of certain topics….To the extent that Appellants claim injury based on not having received a new foster child placement or having been required to attend an additional class as a condition of maintaining their resource family status, there is no clearly established law requiring any alternative conduct by Appellees during the pendency of this litigation. Therefore, Appellees are entitled to qualified immunity on these claims.”
The case is Kelley v. San Diego County Health and Human Services Agency, 20-56111.
California Decision
In an unpublished decision decided by Div. One of California’s Fourth District Court of Appeal on Oct. 25, 2019, Kelley was denominated “S.K.” and Smith was identified as “T.S.” The court affirmed a San Diego Superior Court decision terminating the de facto parental status of Kelley and Smith as to “Teenager,” there referred to as “Jason R.”
The opinion by then-Justice Patricia D. Benke (now retired) notes that “caregivers indicated in a court filing that they did not object to Jason’s removal because they respected his wish not to be placed with them, but caregivers did object to the Agency’s stated basis for removal.”
Judge Gary M. Bubis’s decision to yank the de facto parental status, the opinion declares, is supported by “[a]mple evidence.”
Benke said in a footnote:
“Importantly, we see no indication in the record that the court made, or the Agency advocated, any of the challenged orders on the basis of caregivers’ sexual orientation. Nor are we persuaded by caregivers’ assertion that the Agency was somehow biased against them due to their sexual orientation. The record shows that the Agency was highly supportive of caregivers and their adoption efforts until Jason himself became uncomfortable with the proposed adoption.”
That case is In re Jason R., D074770.
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