No Relief for Would-Be Adoptive Parents For State's Removal of Baby Without Notice

Elwell v. Kaufman, 2012 WL 5507251 (11/14/12) (Kan.) (Published) - No relief where the state took a 14-month-old foster baby without notice from a couple who were about to adopt the baby after caring for him for more than a year. By the time the state found there was no grounds for taking the baby, it was too late to take the baby back from another couple. The 10th holds the couple had a liberty interest in their relationship with the baby, given the extended period of their relationship with the baby and the preadoptive status. The 10th holds the taking of the baby without advanced notice when there was no immediate danger to the baby violated due process. But since the law didn't clearly say preadoptive parents had a liberty interest in their foster children, qualified immunity barred relief. The 10th also rules that the state notice procedures for taking a baby did not create a due process right because the statute did not mandate any particular outcome. In concurrence Judge Matheson complains about the majority making the constitutional ruling. He thinks they should have skipped that step because the district court didn't rule on that matter. But the majority thought it would be nice to provide guidance to state officials, instead of letting them continuously avoid liability in circumstances like this case.