When a parent is unable to care for a child, the parent may temporarily transfer care and custody of the child to a public or charitable agency. Care and custody may also be transferred by court order when, for example, a parent has abused or neglected a child. The agency may place the child with an adult who is licensed and paid by the state to provide the child with care. The caretaker is commonly called a "foster parent." Voluntary relinquishment and foster care are regulated by statute and by contracts between the natural parent and the agency, and the agency and the foster parent. By statute and contract, children are removable from a foster home on short notice when the agency determines that the best interests of the child would be served by reunification with a natural parent, placement in another foster home, or adoption by a person other than the foster parent.
In theory, foster placement is intended to be short term and is not expected to engender strong emotional bonds between the foster parent and child. Nevertheless, foster placements often last a long time, and a foster parent and child may become deeply attached to one another. Consequently, foster parents have challenged removal procedures on the ground that they infringe fourteenth amendment due process rights of the foster parent and child. Despite their initial contractual undertaking to relinquish the child to the agency upon demand, foster parents assert that a constitutionally protected liberty interest arises when a psychological parent–child relationship does in fact develop in foster placement. In the leading case, Smith v. Organization of Foster Families for Equality and Reform (OFFER) (1977), foster parents challenged New York removal procedures. The Supreme Court held that, even assuming the existence of a liberty interest in the foster family relationship, the removal procedures employed by New York were not constitutionally defective. The Court observed that OFFER does not involve "arbitrary government interference in … family-like associations" but instead entails a potential collision of private liberty interests. The interest of natural parents in regaining their children may directly conflict with the interest of foster parents in keeping the children. The best the state can do in drafting removal provisions is give due respect to all interests, which New York had done.
Deciding the question left unanswered by OFFER, the U.S. Court of Appeals for the Second Circuit in Rivera v. Marcus (1982) held that a person who entered a foster care agreement to care for younger half-siblings had a constitutionally protected liberty interest in preserving the integrity of the family from state removal of the children, and that the Connecticut removal provisions did not adequately respect this interest. Acknowledging that several other circuits had concluded that foster parents do not possess a constitutionally protected liberty interest in the integrity of the foster family, Rivera relied, in part, on the biological relationship between the caregiver and her half siblings. Similarly, Rodriguez v. McLoughlin (1998), a federal district court decision, found a liberty interest where a child had spent all his life with the foster parent and the foster parent had signed an agreement to adopt the child before the child was removed from the foster home.
Grace Ganz Blumberg
Chambers, David L. and Wald, Michael S. 1985 Smith v. OF FER. Pages 114–117 in Robert H. Mnookin, ed., In the Interest of Children: Advocacy, Law Reform, and Public Policy. New York: W.H. Freeman.
Mnookin, Robert H. and Weisberg, D. Kelly 1995 Child, Family and State, 3rd ed. Boston: Little, Brown and Co.