Application to stay California Court of Appeal's order declining
to continue applicants' right to visit their prospective adoptive
child, pending review by this Court, is denied. It appears unlikely
that four Members of this Court would vote to grant plenary review,
and the record amply supports the Court of Appeal's finding that
further legal obstacles to the child's placement in another
adoptive home would be to the child's detriment.
MR JUSTICE REHNQUIST, Circuit Justice.
Applicants Kelly Marten and Kathy Marten have asked me to stay
an order of the California Court of Appeal declining to continue
their right to visit their prospective adoptive daughter, Sarah,
pending disposition of applicants' appeal or petition for a writ of
certiorari to this Court. The Court of Appeal earlier had rejected
applicants' appeal from an order of the Superior Court upholding
the decision of the respondent placement agency to terminate
applicants' status as Sarah's prospective adoptive parents. Because
I do not believe that four Members of this Court will vote to hear
applicants' ultimate appeal or petition, and because the Court of
Appeal specifically found that further legal obstacles to Sarah's
placement in another adoptive home would be to the child's
detriment, I will deny the requested stay.
The historical facts in this case are not in dispute, and may be
gleaned from the application and the opinion of the California
Court of Appeal. In early 1976, applicants, who are husband and
wife, qualified as prospective adoptive parents with respondent San
Bernadino County Adoption Services (the Agency). On May 17, 1977,
Sarah, then 15 weeks
Page 446 U. S. 1321
old, was placed in applicants' home on a "quasi-adoptive" basis
pending final adoption at some later date. At that time, applicants
agreed to inform the Agency of any change in their domestic
circumstances.
Unbeknownst to the Agency, applicants had been experiencing
marital problems even before they took custody of Sarah. These
problems finally culminated in a separation in January, 1978, when
Kelly Marten left his wife and Sarah and moved in with another
woman. Contrary to their original agreement, however, applicants
did not inform the Agency of this change in circumstances.
Applicants apparently remain separated as of this date.
In April, 1978, the Agency learned of applicants' separation
through a third party. The Agency sent first one and then another
social worker to Kathy Marten's home to interview Ms. Marten and to
assess Sarah's environment. The first advised applicants that
removal of Sarah from their custody was a possibility, but that she
would have to consult her superiors. The second social worker
concluded that Ms. Marten's psychological state was deteriorating,
and recommended that Sarah be removed from applicants' home. Upon
receiving these reports, the Agency's acting chief of adoptions and
its director agreed that Sarah should be removed from Ms. Marten's
custody and that the removal should take place without notice to
applicants. This latter determination was based on their belief
that notice would place Sarah in "imminent danger" because of the
perceived likelihood that Ms. Marten would flee from the State with
the child. On August 21, 1978, Sarah was, in fact, removed from Ms.
Marten's custody without prior notice, and was placed in a foster
home.
Pursuant to applicable California law, applicants sought
administrative review of the Agency's decision to terminate their
status as Sarah's prospective adoptive parents. After a hearing,
the "Review Agent" issued a decision upholding the Agency. He
found,
inter alia, that there had been substantial
Page 446 U. S. 1322
cause to believe that Sarah was a child whose health and safety
had been in jeopardy, that she had been in imminent danger, and
that the jeopardy would have been greatly increased if prior notice
of the removal had been given to applicants.
On applicants' petition to Superior Court for a writ of mandate,
that court found that the conclusions of the Review Agent were
amply supported by the record and that return of Sarah to
applicants "
would not be in the best interest of the child, and
in fact would be detrimental to the child.'" 99 Cal. App. 3d
161, 167, 160 Cal. Rptr. 57, 60 (1979).
The Court of Appeal affirmed, rejecting each of the contentions
that applicants claim they will advance in their appeal or petition
to this Court. First, the appellate court concluded that, while
pre-removal notice to custodial "parents" in applicants' position
was a normal requisite of procedural due process, California law
specifically permitted removal without notice where "[t]he agency
director has reasonable cause to believe the child is in imminent
danger. . . ." 22 Cal.Admin. Code § 30684(d)(1)(A) (1976). Here,
according to the Court of Appeal, substantial evidence supported a
finding that Ms. Marten might flee if notified, and that such
flight would endanger the child. In particular, the Court of Appeal
cited
"(1) the husband and wife's concealment of their marital
differences in order to obtain the adoptive placement; (2) their
failure to report their separation as required by their agreement
with the Agency; (3) the wife's previous conduct in taking the
child to an unauthorized destination out of the state; (4) the
wife's emotional instability and over-dependence on the child for
her emotional needs; (5) insensitivity of both husband and wife to
the child's emotional and developmental needs; and (6) the fact
that the fear of losing the child had been the stated reason for
their untruthfulness and subterfuge."
99 Cal. App. 3d at 172, 160 Cal. Rptr. at 63.
Page 446 U. S. 1323
Second, the Court of Appeal confronted applicants' contention
that their marital separation should not disqualify them "
a
fortiori" from adopting Sarah. According to the court,
however, applicants' separation was only one factor in the Agency's
decision to terminate their status as prospective adoptive parents.
Other important considerations included
"emotional stability of the parents, parental sensitivity to the
child's developmental needs, trustworthiness of the parents and
their willingness to abide by the rules, maturity of the parents,
motivation to correct deficiencies, and economic security."
Id. at 17, 160 Cal. Rptr. at 64. Looking to the record,
the appellate court concluded that all these considerations
supported the Agency's decision.
Finally, the Court of Appeal rejected applicants' claim, raised
for the first time in their reply brief to that court, that the
Review Agent should have appointed independent counsel to represent
Sarah at the administrative hearing. Overlooking the belated nature
of this argument, the court found no evidence of any divergence of
interest between the Agency and Sarah, and therefore no need "to
further encumber the . . . placement procedure" by requiring
provision of independent counsel.
Id. at 174, 160 Cal.
Rptr. at 64.
Prior to their appeal to the Court of Appeal, applicants had
been visiting Sarah twice a week at her foster home pursuant to an
agreement reached with the Agency. During its consideration of
applicants' case, the Court of Appeal entered an order permitting
applicants to continue their visits. When that court entered its
judgment, however, it specifically vacated that order, noting that
applicants had "already delayed the child's placement in a proper
adoptive home by several months, to the child's detriment," and
that "[f]urther legal maneuvers to perpetuate a relationship
initiated by their own wrongful act should not be tolerated."
Id. at 175, 160 Cal. Rptr. at 64. After the Supreme Court
of California declined to hear applicants' appeal, the Court of
Appeal denied applicants' motion to recall its mandate and to
Page 446 U. S. 1324
grant them continued visitation rights pending appeal or
petition to this Court. It is this last order that applicants would
have me stay so as to grant them the visitation rights terminated
by the court below.
Applicants state that, in their ultimate appeal or petition to
this Court, they will raise each of the three aforementioned
contentions rejected by the Court of Appeal. I find it highly
unlikely that four Members of this Court would vote to grant
plenary review on any of these issues.
In regard to applicants' claim that they were entitled as a
matter of procedural due process to pre-removal notice, I would
note initially that such a claim depends entirely upon their
ability to show that they have been deprived of some protected
interest in life, liberty, or property. As I read this Court's
opinion in
Smith v. Organization of Foster Families,
431 U. S. 816,
431 U. S.
842-847 (1977), their success on this threshold issue is
far from certain.
See also id. at
431 U. S.
856-863 (STEWART, J., concurring in judgment). Even
assuming such success, however, applicants candidly, and somewhat
cryptically, pose the primary issue presented to this Court as
whether authorities can dispense with pre-removal notice on a
finding of "
prospective' imminent danger" to the child, as
opposed to "actual imminent danger." Statement of Points and
Authorities 7. Like the court below, I find this distinction
somewhat elusive. In any event, I am reasonably certain that, given
the uniform conclusion of the agencies and courts below that there
was indeed an imminent danger to Sarah, four of my colleagues would
not vote to examine that conclusion.
As for applicants' contention that they were disqualified as
prospective adoptive parents "merely" because they had separated, I
note only that this contention finds no support in the decision of
the Court of Appeal or in any of the documents filed in support of
the application.
Finally, applicants reassert their contention that Sarah was
entitled to independent counsel in the administrative proceeding.
Absent a showing of actual conflict or other
Page 446 U. S. 1325
prejudice to Sarah, however, I see little chance that this
argument will receive plenary review.
Applicants argue doggedly that the equities in this case favor
continuation of their visitation privileges pending disposition of
their case by this Court. They rely in particular upon affidavits
by various child psychologists indicating that such visits would
not harm Sarah, and actually would assist her in overcoming the
trauma of removal from applicants' home. The Court of Appeal also
was presented with these affidavits, however, and concluded on the
basis of all the evidence that further visitation would not be in
Sarah's best interest. In a passage I consider quite telling, that
court stated:
"The concealment of [applicants'] marital difficulties and
[their] failure to report their separation suggests that the
initial placement may have been sought in an effort to salvage a
failing marriage. It is unfortunate when natural parents resort to
such practices; to permit adoption to be used for such purpose
would be a serious breach of duty on the part of the Agency."
99 Cal. App. 3d at 173, 160 Cal. Rptr. at 64. Removed as I am
from the actual events at issue by nearly 3,000 miles and by
several layers of judicial proceedings, I decline to make my own
assessment of Sarah's best interests, and instead defer to the
amply supported conclusions of the courts below.
The application is accordingly
Denied.
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