Appeal from the United States District Court for the Northern District of Georgia.
Tuttle, Goldberg and Roney, Circuit Judges. Roney, Circuit Judge.
This appeal presents the question whether the federal courts can give relief to white foster parents who contend that they have been unconstitutionally denied by Georgia state officials the right to adopt a mixed race child solely on account of race. Neither the trial court nor this Court has the desire nor the authority to second-guess the Department of Family and Children Services on the fitness or suitability of anyone as adoptive parents. Our jurisdiction permits us only to ascertain whether in the adoption process the state has deprived the plaintiffs of a protectable interest under the Fourteenth Amendment without procedural due process or has denied them equal protection of the laws as guaranteed by the Fourteenth Amendment.
The record before us, while very sketchy because of the fact that the trial court plainly considered it to be to the best interests of all concerned to keep the hearing on preliminary and permanent injunction narrowly restricted,*fn1 nevertheless discloses the following facts:
The child, Timothy, known throughout as Timmy, was born out of wedlock on November 17, 1973 to a white mother by a black father. After one month in the care of his natural mother, he was taken into the care of the defendant Fulton County Department of Family and Children Services under the authority of Georgia law because of the "unfitness" of the mother. On December 15, when he was less than one month old, he was placed in the home of Robert and Mildred Drummond, the plaintiffs, as foster parents. At this time, Mrs. Drummond was 49 or 50 years old and her husband was 37 or 38 (the record does not show their birthdates but at the time of the action by the defendants here complained of, they were 51 and 39 respectively.)
For 15 months, until March 10, 1975, the Drummonds cared for Timmy in their home as a child of their own in a manner subsequently described by the caseworkers and supervisors, both foster home and adoption personnel, as "excellent," "loving," "extremely competent" so that at that time he was described by such personnel as "an extremely bright, highly verbal, outgoing 15-month-old baby boy."
Home visits by foster home caseworkers were infrequent, but some contact was maintained by telephone, especially when the Drummonds desired to leave town for trips. Some time late in 1974, it came to the attention of the then current caseworker Barbara Osgood, that the Drummonds wished to adopt Timmy. She had not then seen Timmy or the Drummonds, but the problem of the Drummonds' request was submitted to a "staffing." This was a conference which included Osgood's supervisor, Mrs. Grape, Mrs. Dallinger, the adoption supervisor, and one or two other personnel. It is apparent that none of these staff people had seen either Timmy or the Drummonds.Miss Osgood's description of what occurred at the staffing follows:
"A. Well, it centered around the fact that we knew the Drummonds would like to adopt Timmy, and Miss Grape talked a great deal of time about she was black and she talked a great deal of the time about experience that she had known or heard of of black or mixed race children growing up in white homes. And she had, you know, some real feelings that this was not a good plan to this type of child, that they face too many problems as a result of that kind of placement.
So after, you know, some discussion was made about that, the decision was made for Miss Grape and Miss Dallinger to talk with the Drummonds and to try to express, you know, some of our concerns about what we felt was in Timmy's best interest; and, also, the question was brought up that if the Drummonds were not amenable to our plan, would we move Timmy to a black foster home feeling that, you know, it would be better if we were going to have him adopted by a black couple, to have him in a black foster home if they was going to be any length of time before he was free.
Q. Was there a decision made at that staffing that you recall? Was there a vote taken in any way?
A. No. There was no vote taken. I think I commented at the time that it seemed to me that the decision had already been made.
Q. What do you feel the decision was?
A. I think the decision was that it would be in Timmy's best interest to be adopted by a black couple." (Emphasis added.)
On March 10, Mrs. Grape and Mrs. Dallinger had the Drummonds bring Timmy to the office to carry out the decision made at the "staffing." Mr. Drummond testified that at the conference: "Mrs. Grape said she thought Timmy should be adopted by a black family." The following testimony then followed:
"Q. What did you say when you were told that Miss Grape, by Miss Grape, that she thought it would be best for Timmy to be placed with a black couple?
THE COURT: What did you say?
Q. Black couple. Is that the terminology they used, or black family or black parents?
A. Black family, I believe.
Q. What was your response to that?
A. Well, my wife and myself thought that we should be able to adopt Timmy, that we would like to have him.
Q. All right, Was there anything said about it being to his advantage for him to grow up in the black community?
A. I think Miss Grape said something to that effect.
Q. Did you and your wife ever accept the fact that you couldn't adopt Timmy, that he had to be adopted by black parents?
Q. Did you ever do anything about it after you were told - this March meeting, what did you do after that, toward adopting Timmy?
A. Well, we told them we would like to adopt him and told the case worker."
Mrs. Drummond's testimony as to this interview was as follows:
"Q. Okay. What did they tell you about whether they were going to permit you to adopt him?
A. They told us that - Miss Grape did the talking, and Miss Grape said that since Timmy was a mixed child, that she felt, and she felt that the Department felt, that Timmy would be better off raised in a black family.
Q. Did you accept that at that time?
A. I tried to accept it. But I could not.
Q. What further steps did you take to try to adopt Timmy?
A. I called and talked with the case workers and repeatedly told them that we wanted to adopt Timmy. And then when Mrs. Osgood came out to our home, we told her how much we wanted to adopt Timmy and would they please give us another meeting, that we would try and let them know how much we wanted Timmy.
Q. Okay. Back up to the March meeting.Were you told at that meeting that you were too old to adopt him?
Q. When did you move to Douglas County?
Q. Did anyone ever tell you it would hurt your chances to adopt Timmy if you moved to Douglas County?
Q. Would you have moved to Douglas County had you known?
A. No, indeed, had we known.
Q. Are you willing to return to the City of Atlanta?
A. We're packing to move back to Fulton County to the City of Atlanta now.
Q. In the March meeting, did Miss Dallinger or Miss Grape discuss the community in which they thought Timmy should live?
A. They told us that they felt that he would be - Miss Grape stated that she felt that he would be better off raised in a black community."
A memorandum for the files was prepared by Mrs. Grape as follows:
"On 3/10/75 Mr. and Mrs. Drummond, foster parents, were in the office with Timothy Hill, foster child. Nancy Hartzog kept Timothy in the playroom while Helen Grape and Kay Dallinger had a personal conference with Mr. and Mrs. Drummond. The Drummonds now admit that Timothy is a mixed race child of Black/White heritage. They did some superficial denial of the idea that this fact would cause Timothy any problems in remaining in their home. They did not, however, push for them to be allowed to adopt Timothy. As a matter of fact, they stated they could let Timothy go to a young, energetic, religious, adoptive couple. They expressed primary concern that he not be moved from their home to another foster home as they believed he would not receive the quality of care they are giving him in another foster home. They feel that separation from Timothy will tear their hearts out but that they can do it because it would be best for Timothy in the long run. They seem quite accepting when Ms. Grape and Ms. Dallinger verbalized for them that Timothy would, in our opinion, make a better adjustment and have a better chance in life with a Black couple in the Black community.
We further explained our efforts to work with the natural mother, the expected time involved before we could get either a voluntary release or be prepared for court action to terminate parental rights. We said the mother was not a bad person but a sad person - immature not ready for responsibility. We stated we needed to make further efforts to rehabilitate her before a final decision is reached. We estimated a minimum of six months to one year before we will even know if adoption is the plan for Timothy. Ms. Dallinger explained that even the () months more would be involved in working with him to fully know Timothy, select the right adoptive home, and slowly move Timothy. Ms. Drummond cried in anticipation of eventual separation. Both Mr. and Mrs. Drummond expressed appreciation in knowing the truth. The truth being 1) we are working towards adoption for Timothy outside their home; 2) it may take one to two years to accomplish this goal; 3) the rehabilitation of the mother's home is a slim possibility but still a possibility; 4) because of the excellent care the Drummonds have provided for Timothy, we (the agency) are more than willing for the Drummonds to keep Timothy on a foster care basis until a permanent plan can be made if the Drummonds are willing to keep him under these circumstances. The Drummonds committed themselves to giving the child all the love and care they can give him as foster parents and to eventually helping Timothy to separate from them and move to a permanent adoptive home. They reemphasized that they could 'love and let go.'
ADDITIONAL NOTE : We agreed to keep them informed of any progress that we make in working with the natural mother or in court action. Ms. Grape suggested 11/75 as a good review date since Timothy will be two years old that month. Timothy was observed on this date to be an extremely bright, highly verbal, outgoing, 15 month old baby boy. His complexion is light olive. He has a definite Afro and is a physically appealing mixed race child." (Emphasis in original)
A letter was then sent to the Drummonds which is copied here verbatim:
Mr. and Mrs. Robert Drummond
Dear Mr. and Mrs. Drummond:
This is to confirm with you our understandings and agreements during our office conference on 3/10/75. As you will recall, on this date we explained our efforts to work with Timothy's natural mother and the time involved before we could get either a voluntary release or be prepared for court action to terminate parental rights. However, we also explained that we would continue further efforts to rehabilitate Timothy's natural mother before a final decision was made. The estimated time span would be approximately six months to one year before this decision would be reached. If adoption becomes legally possible, months will be involved in working with you, fully knowing Timothy, selecting the right adoptive home, and slowly moving Timothy into a permanent adoptive home.
Both of you expressed appreciation in knowing specific steps that the department would take in working with Timothy. These steps are:
1) we are working towards adoption for Timothy outside your home;
2) it may take one to two years to accomplish this goal;
3) the rehabilitation of the mother's home is a slim possibility but still a possibility;
4) because of the excellent care you have provided for Timothy, the agency is happy for you to keep Timothy on a foster care basis until a permanent plan can be made, if you are willing to keep him under these circumstances, and you stated in our meeting that you wanted to keep him until a permanent plan could be made.
You committed yourselves to giving Timothy all the love and care that you could give him as his foster parents and also eventually to helping Timothy to separate from you and move into a permanent adoptive home. Thank you for your love and concern for this precious child.
Casework Supervisor III -
Casework Supervisor III -
Mrs. Drummond testified that they continued to make known to their caseworker thereafter their desire to adopt Timmy. This is confirmed by Mrs. Osgood, their caseworker, who testified:
"A. After I read this [the memorandum of March 11, supra ] I thought, well, that perhaps things had been resolved with the Drummonds and that it appeared that they were in agreement with us. So I went out to do the foster home re-evaluation interview thinking this was decided and that they would have, you know, have been in agreement with this plan for Timmy. I was really surprised when I got out there, because to hear their interpretation of it, that they were not in agreement with it at all.
And, you know, I don't know whether it is because they had changed their minds in the interim period or whether we had heard what we wanted to hear in the interview, but at any rate, they certainly were not in agreement with what this states when I went out there.
Q. What did they want to do when you went out there? What was their opinion? What was their approach to you?
A. Well, they had stated that they had been talking with their foster care worker who was Mollie Bartlett at that time and were requesting an interview with the adoption staff to, again, state their desire to adopt Timmy.
Mrs. Drummond said she had not heard anything about it, and so I told her after I wrote up my evaluation that I would write a memo to Mrs. Dallinger bringing it to her attention that the Drummonds were still interested. I did that soon after the evaluation.
A. I received a reply stating that the Drummonds would be given an interview after Timmy's termination hearing."
On August 15 Miss Mollie Bartlett wrote a memorandum to Mrs. Dallinger as follows:
"On 3-10-75, you met with Mrs. Grape and the Robert Drummonds, Timmy's foster family. At the conclusion of the conference the Drummonds were planning to care for Timmy until he was freed for adoption and to help him adjust to the adoptive home when adoption occurred. For a short time they seemed to fully accept the premise that Timmy would be better placed in a black home.
Today, after nearly six months, the Drummonds are requesting an opportunity to be reconsidered as adoptive parents for Timmy. They have no reservations about their acceptance of a mixed race child. Mrs. Drummond's health had once seemed questionable, but her doctor found gallstones and as soon as she has surgery, she foresees no further health problems."
"In response to your memo regarding the Drummonds' renewed interest in adopting Timmy, I have learned that the termination petition has been filed and the hearing set for 9/25/75 at 9:30. Under the circumstances the Drummonds should bring Timmy to the office for the hearing, and you should bring him to the juvenile court.
I personally feel that the Drummonds are back into their earlier denial pattern. The approach I recommend for you is to stall with no encouragement. Example . . . 'No one can be considered for the adoption of Timmy until he is freed. Adoption staff would have to carefully examine any possible home for Timmy, particularly a white home such as yours. I don't want to encourage you. The best thing for you to do is think about this some more and discuss this with the adoption staff. If and when he is freed, I have advised adoption that you have changed your mind.'
Thank you for alerting us to the situation." (Emphasis in original).
Thereafter, about August 25, Mrs. Osgood made the re-evaluation as a result of which she described the foster parents in the following terms.
"The foster parents provide excellent care. They are unusually attentive to the child's medical and emotional needs and feel as if they are the 'natural' family."
Under the heading on the evaluation form "Particular Strength of Home," Mrs. Osgood wrote:
"The Drummonds have accepted a mixed race child and have handled the attendant problems well. They are a very loving, warm family."
Finally, she made the following recommendation for the Drummonds as foster parents: "I recommend this home for a child of either sex, age 0 to 3."
This re-evaluation report was accompanied by a memorandum again addressed to Mrs. Dallinger:
"I recently did the foster home re-evaluation on the above named couple As you will recall on March 11, 1975, you and Helen Grape interviewed Mr. and Mrs. Drummond regarding their expressed interest in adopting Timmy. For your convenience a copy of the notes from that conference are attached.
I spoke with Mr. and Mrs. Drummond for over two hours and during this time I also had a chance to observe Timmy. As a result of my conversation I have the distinct impression that the Drummonds did not adequately express their feelings on the March 11th interview. In the foster home re-evaluation they stated unequivocally and emphatically their desire to adopt Timmy. They rejected the notion that he would make a better adjustment in a Black home by pointing out that Timmy has always been around White people and this has been incorporated into his self-concept. They do not understand why we would remove a child from a home where he has been since birth and replace him because we believe he will have a better 'chance' in the Black community.
The Drummonds expressed their intention to give Timmy every opportunity possible to develop as a human being, regardless of race. I talked with them about community acceptance and the possibility of Timmy dating a Black girl when he gets older. The Drummonds acknowledged that Timmy would be 'different,' but felt he would have problems in the Black community also. They noted that Timmy would make his own decisions as to who he would date and they would have no objections to his choice. They pointed out that they make no secret of Timmy's Black heritage and felt that they would deal forthrightly with Timmy on this subject.
Timmy is an exceptionally well-adjusted child. There is no question that he is the center of this household. He talks in sentences, counts to ten, and shows off for visitors by strumming the guitar and singing gospel songs. The fact that he is bright, active, and friendly is a tribute to the excellent care he is receiving from these parents.
Because of the intensity of their feelings for Timmy, the Drummonds are again requesting a conference with you to discuss adoption. I believe they will explore every possibility in their efforts to keep Timmy first within the agency, but using outside resources if it becomes necessary.
I hope this information will be helpful. I understand Timmy's termination hearing is set for September 25th, 1975."
To this memo Mrs. Dallinger replied:
"Thank you for your memo of 9/3/75 concerning this case. I have discussed the case with Ms. Staten. We feel it is inappropriate to decide the matter prior to termination proceedings on 9/25/75. I will throw the issue open to the adoption committee at the end of September, if he is freed. Regardless of any decisions made, you may assure the Drummonds that they will be given further interviews with me or other adoption staff about this matter. Early October would appear to be the best time for this and I will see that they are contacted. Please loan me any case files you have on the Drummonds."
On September 25, the Juvenile Court of Fulton County entered what is known as a "Termination Order," ending the parental rights of Timmy's natural mother and placing his custody in the Georgia Department of Human Resources, Division of Family and Children Services, granting the Division the right to place Timmy for adoption.
Thereupon, on October 3 a "Social Study on Child to be Placed" was made for Timmy. It was made by an adoptions caseworker named Phyllis Jonas. This study described the child as having "medium olive" skin, "dark brown," "thick rather coarse and wavy hair" and as being a "very attractive child," normal physically and ...