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Rees v. Office of Children and Youth

September 30, 2010


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.


This civil action arises from events involving the Plaintiff's unsuccessful attempts to obtain custody of her two minor grandchildren following the death of her son, who was the children's biological father. Plaintiff Barbara Rees has asserted a cause of action under 42 U.S.C. § 1983 for the alleged violation of her federal civil rights as well as various claims premised on Pennsylvania tort law. She has named as Defendants the Erie County Office of Children and Youth ("OCY") and several of its employees and/or agents.

The case was originally commenced in the Erie County Court of Common Pleas and removed to this Court pursuant to 28 U.S.C. § 1441. This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331, 1343(a) and 1367(a).

Presently pending before me is the Defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow, the motion will be granted insofar as it relates to Plaintiff's federal claim under § 1983. As to the remaining state law claims, this Court will decline to exercise supplemental jurisdiction and will instead remand those claims for further proceedings in state court.


Pearl Dombrowski ("Pearl") and Ruby Peterson ("Ruby") are the minor children of Carrie Peterson ("Peterson") and Joseph Dombrowski, who is now deceased. (Complaint ¶¶ 1-2.) Plaintiff Barbara Rees ("Rees") is the mother of Joseph Dombrowski and the paternal grandmother of Pearl and Ruby. (Id. at ¶ 4.) Defendants Karleen Vogt ("Vogt") and Cyndi Valimont ("Valimont") were employed at all relevant times by OCY as, respectively, a caseworker and a supervisor. (Id. at ¶¶ 8, 11.) Defendant Amy Jones, Esq. is an assistant solicitor for the County of Erie who represented OCY in matters pertinent to this litigation. (Id. at ¶ 14.)

On or about April 5, 2007, Defendant OCY began an investigation of alleged neglect on the part of Pearl and Ruby's biological mother, Peterson. (Complaint ¶ 20.) Three months later, in July of 2007, the children were taken into custody by OCY and placed into a foster home as the result of a judicial determination that continued placement in Peterson's home would be contrary to the children's welfare. (Id. at ¶¶ 21-22.)

Prior to these events and the involvement of OCY, Pearl had spent significant time with Rees and, with the agreement of her biological parents, had been cared for by Rees over a period of seven months. (Complaint ¶ 18.) During this same period of time, Peterson had denied Rees custody over Ruby on the ground that she did not believe Joseph Dombrowski to be Ruby's biological father. (Id. at ¶ 19.)

On August 4, 2007, shortly after the children had been placed into an OCY foster home, Joseph Dombrowski died unexpectedly. (Complaint ¶¶ 21, 24.) On or about that date, genetic tests were taken by the Domestic Relations Section of the Erie County Court of Common Pleas. (Id. at ¶ 25.)

A few days later, a court hearing was held concerning a Dependent Child Petition filed by OCY on behalf of the children. (Complaint ¶ 26.) At this hearing, Rees notified Defendant Jones and OCY that she wished to assume the responsibilities of her deceased son and care for the children. (Id. at ¶ 27.) In addition to Rees, several members of the children's biological family advised OCY that they wished to care for and/or adopt Ruby and Pearl. (Id. at ¶ 28.) Defendants nevertheless refused to allow Rees or other family members to care for or adopt the children on the ground that the paternity of the children had not been officially determined. (Id. at ¶ 29.)

On or about November 29, 2007, the results of the genetic tests revealed Joseph Dombrowski to be the biological father of both Pearl and Ruby. (Complaint ¶ 31.) Rees was then granted permission to visit the children each week for a period of one hour at the home of the foster parents. Later, these visits were expanded to include activities outside of the foster home for a period of up to one and one-half hours, including travel time. (Id. at ¶¶ 32-33.)

On December 12, 2007, Rees completed an Emergency Caregiver Kinship Authorization and Consent form and delivered the same to OCY. (Complaint ¶ 34.) Rees was subsequently notified by Defendants Vogt and Valimont that her form would remain on file and that the children would be placed with her only if they were not reunified with their biological mother. (Id. at ¶ 35.)

On or around January 29, 2008, Rees's then-attorney, James Geronimo, Esq., sent correspondence to Defendant Jones and OCY requesting increased visitation time and reiterating Rees's willingness and ability to take over the care of the children. (Complaint ¶¶ 36-37.) Following this request, Vogt and OCY terminated Rees's weekly visits with the children without stating any reason. (Id. at ¶ 38.)

Two months later, in March of 2008, Valimont and Vogt advised Rees that her weekly visits would be reinstated under the conditions that they occur at the convenience of the foster parents and that they not exceed two and one-half hours. (Complaint ¶¶ 40-41.) Thereafter, Rees sought overnight visits with the children but was informed by Vogt that such visits would not be allowed as they would interfere with the reunification process between the children and Peterson. (Id. at ¶¶ 42-43.) Notwithstanding this, the children's foster mother gave Rees verbal approval of her request and indicated that Peterson had never made any attempt to see the children.

(Id. at ¶ 44.)

On or around July 7, 2008, Rees was notified by OCY that the reunification process between the children and their mother had been terminated. (Complaint ¶ 45.) That same day, Defendant Valimont telephoned Rees about her interest in pursuing the Kinship Care process, and the process was re-initiated two days later on July 9. (Id. at ¶¶ 46-47.) In spite of the kinship care process having been renewed, Plaintiff was notified later that month by the children's foster mother that OCY had informed her it would require agency approval for each of Rees's visits with the children. (Id. at ¶ 48.)

On or around July 28, 2008, the Court of Common Pleas entered an order involuntarily terminating Peterson's parental rights. (Id. at ¶ 49.) At that hearing, the children's guardian ad litem recommended that the children be placed with Rees as next of kin; however, Defendant Vogt recommended adoption by the foster parents on the ground that the children's father, who had been raised by Rees, had committed suicide. (Id. at ¶¶ 50-52.) Notwithstanding these events, Rees's Kinship Care application was approved on or around August 28, 2008 (Id. at ¶ 53.)

Approximately two weeks later, Rees filed a formal grievance against OCY with Mary Ann Daniels, Director of the Erie County Department for Human Services, Office of Children and Youth Services. (Complaint ¶ 54.) The following day, Rees learned that OCY was canceling her weekly visits with the children and that it had instructed the children's foster mother not to allow Rees any contact with them. (Id. at ¶ 55.) Rees avers that this action was taken in retaliation for the formal grievance she filed against the Defendants. (Id. at ¶ 56.) This cancellation of visits occurred notwithstanding Defendants' awareness that Rees was eligible to care for the children and that her kinship care application had been improved. (Id. at ¶ 57.) On or around September 22, 2008, OCY transferred responsibility for the matter to a new caseworker, Greg Phillips. (Complaint ¶ 58.)

The following month, Rees filed a second formal grievance against the Defendants, this time with the United States Department of Health and Human Services, which forwarded the grievance on to the Pennsylvania State Office of Children, Youth and Families. (Id. at ¶¶ 59-61.) By e-mail dated October 30, 2008, Ms. Daniels acknowledged that OCY had been directed to facilitate visitation with Rees and expressed her own uncertainty as to the reason for the "hold-up." (Id. at ¶ 62, Ex. E.)

On or around November 3, 2008, Rees received a letter from the Director of OCY stating that she had been selected for "random" urine screens for drugs and alcohol requiring her to call the office every day of the week starting immediately to see when she would have to submit to these tests. (Complaint ¶ 63.) The following day, Rees received an email from Cyndi Gariepy, Program Representative, Pennsylvania State Department of Public Welfare, indicating her concern that "[t]his case was handled very poorly by the agency." (Complaint ¶ 64, Ex. F.)

On or around November 17, 2008, Rees was advised that, as the result of an investigation of OCY at the state level, her case would be assigned to a new caseworker, Nicole Duplanti, and a new supervisor, Kim Warchol. (Id. at ¶ 66.) Rees was further advised that she would have to once again recommence the process of submitting to a home study and undergo additional daily "random" drug screening. (Id. at ¶ 67.) Rees ultimately chose not to participate in the second home study based on her frustration with the process and her treatment by the agency.

Following a "lengthy and thorough review" of OCY's actions by the Pennsylvania Department of Public Welfare, Western Region Office of Children, Youth and Families, the latter agency issued a report of its findings as set forth in correspondence dated January 2, 2009 and appended to the Complaint. (Complaint ¶ 68, Ex. G.) That report states, in relevant part, as follows:

The agency removed the children from their mother on July 27, 2007, and placed the children into an approved foster home. On July 30, 2007, the father of Pearl contacted the agency and requested his mother be considered as a placement resource. On July 31, 2007, the paternal grandmother, Ms. Rees, attended the court hearing and requested consideration for kinship approval. The agency failed to consider the grandmother until a paternity test was completed on both children, even though Ms[.] Rees had previously cared for Pearl for seven months. It was not until December 2, 2007, that paternity was verified. A formal kinship referral was not submitted to Family Services until July 9, 2008. Ms. Rees was approved on August 28, 2008. After approval, the children's goal was changed to adoption and all visits were stopped between the children and their grandmother. The agency's plan was to recommend the foster parents adopt the children as they had "developed a bond". Although the grandmother was approved, there was no motion by the agency to move the children, as the bond had already formed between the children and the foster parents.

The Department finds the actions of the agency a direct violation of the Kinship Care Policy and the Adoption and Safe Families Act of 1997. There was no requirement of paternity necessary prior to consideration of Ms[.] Rees as a kinship resource. The agency's failure to conduct an appropriate and immediate kinship study severely disrupted any bond that would have formed between the children and their grandmother.

(Complaint Ex. G.)

Rees alleges that, despite their awareness that several members of the children's biological family wished to care for and/or adopt the children, the Defendants refused to allow herself or any other member of the children's family to adopt or care for them and instead "adamantly and aggressively opposed placement of the children with [her] in favor of the foster parents." (Complaint ¶¶ 28-29, 91.) This refusal of access, she claims, was without any reasonable basis and in contravention of Defendants' duty, pursuant to the Kinship Care Policy adopted by the Pennsylvania Department of Human Services and the Adoption and Safe Families Act of 1997, to "make reasonable efforts and document child specific efforts to place a child for adoption, with a relative or guardian." (Complaint ¶¶ 30, 74, 77, 88-90, 92.) She further claims that, "[t]o date, the bond and relationship between [herself] and her grandchildren remains irreparably damaged" due to the Defendants' actions. (Id. at ¶ 83.)

As a result of the foregoing, Rees has alleged several claims premised on the violation of her rights or duties owed her under state and federal law. Counts I and II assert claims under 42 U.S.C. § 1983 for the alleged violation of her federal civil rights. Counts III and V assert state law claims for negligence and gross negligence, respectively. Count IV asserts a claim for negligence per se, based on alleged violations of the Adoption and Safe Families Act of 1997. Counts VI and VII assert respective state law claims for the alleged negligent and intentional infliction of emotional distress. Count VIII asserts a claim for municipal liability against OCY pursuant to 42 U.S.C. § 1983.

Defendants have filed a motion which requests, among other things, that this Court dismiss all of the federal § 1983 claims on the basis that they fail to state a cognizable cause of action upon which relief can be granted. Plaintiff has filed a brief in opposition, and the issues are now ripe for disposition.


In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoting Grammer v. John J. Kane Reg'l Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir.2009)). Moreover, [w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks and alterations omitted).



Counts I, II, and VIII all involve claims brought under 42 U.S.C. § 1983 to redress alleged violations of Rees's federal civil rights. That statute provides, in relevant part, that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not create substantive rights; instead, it "provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Gordon v. Lowell, 95 F. Supp. 2d 264, 268-69 (E.D. Pa. 2000) (quoting Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996)). Therefore, a plaintiff asserting a claim under § 1983 must establish both: (1) the deprivation of a right secured by the United States Constitution or federal law, and (2) that the alleged violation was committed by a person acting under color of state law. Id. Here, there is no dispute about the latter requirement, but the first is contested.

In Count I of the Complaint, Rees alleges that the Defendants have violated her constitutionally protected rights to privacy, familial association and integrity, and the maintenance, custody, care, and management of her grandchildren. In Count II, she alleges that Defendants violated her constitutional right under the Due Process Clause to equal access to the courts. Rees's theory of liability also incorporates allegations that the Defendants conspired together to deprive her of these rights. Counts I and II appear to be premised, respectively, on the Fourteenth Amendment's substantive and procedural guarantees against "depriv[ations] ... of life, liberty, or property, without due process of law."*fn1 U.S. Const. amend. XIV, § 1. We consider each count in turn.

1. Count I of the Complaint

Where, as here, liberty interests are asserted as a basis for § 1983 liability, the court must initially address the "threshold issue" of "whether the plaintiff has alleged the deprivation of an actual constitutional right at all." McCurdy v. Dodd, 352 F.3d 820, 825-26 (3d Cir. 2003) (internal quotations and ending citations omitted). See also Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000) (en banc) (citation omitted). The Supreme Court has observed that the liberty interests of parents in the care, custody, and control of their children "is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel, 530 U.S. at 65. Rees contends that she enjoys that same constitutional protection relative to her grandchildren. Count I of her complaint may be understood as asserting three variations of this purported liberty interest: (i) Rees's interest in directing the upbringing (i.e., "maintaining custody, care and management") of her grandchildren; (ii) her interest in keeping her extended family intact (i.e. "family integrity") and (iii) her interest in enjoying the companionship of her grandchildren (i.e., "family association"). (See Complaint ¶ 98.)*fn2 To properly determine whether Rees has alleged the deprivation of an actual constitutional right, it is necessary to review the existing case law discussing and defining the constitutional rights of grandparents vis-avis their grandchildren.

We begin with Moore v. City of East Cleveland, 431 U.S. 494 (1977), a case in which the Supreme Court struck down a housing ordinance that restricted occupancy of a dwelling unit to single families while defining "family" in such a way that the appellant, Inez Moore, could not lawfully reside with her son and two grandchildren (who were first cousins to each other).*fn3 En route to its ruling, a plurality of the Court rejected the City's position that any constitutional right to live together as a family should extend only to a couple and their dependent children, stating:

Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. [ ] Over the years millions of our citizens have grown up in just such an environment, and most, surely, have profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family. Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. Decisions concerning child rearing, which Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household -- indeed who may take on major responsibility for the rearing of the children. [ ] Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life. This is apparently what happened here.[ ]

Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree of kinship to live together may not lightly be denied by the State. Pierce struck down an Oregon law requiring all children to attend the State's public schools, holding that the Constitution "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." ... By the same token the Constitution prevents East Cleveland from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns.

Id. at 504-06 (footnotes and internal citation omitted).

Rees argues that the Supreme Court's decision in Moore "carved out rights of familial integrity and privacy for grandparents and other non-traditional family types." (Br. in Opp. of Def.s' Mot. to Dismiss Compl. [9] at p. 8.) Yet such a reading overstates Moore's central holding. The narrow question resolved in Moore was the constitutionality of a city housing ordinance that, on the basis of land-use concerns, "intrude[d] on choices concerning family living arrangements." 431 U.S. at 499. Neither matters of child welfare nor rights involving non-resident grandparents were at issue.

While the Third Circuit Court of Appeals has not defined the substantive due process rights of grandparents and other extended family members relative to custodial matters, several other federal circuit appeals courts have addressed this issue. In the cases which have been decided since Moore, courts addressing the purported due process rights of grandparents and other extended family members seem to place particular emphasis on several factors: to wit, whether the plaintiff is a custodial figure or is otherwise acting in loco parentis to the children; whether and for how long the children were residing with the plaintiff at the time of the alleged deprivation; whether the plaintiff has a biological link to the children; and whether there is a potential conflict between the rights of the plaintiff and the rights or interests of the children's natural parents. Some courts have also considered whether relevant state law would imbue the plaintiff with certain rights or expectations typically afforded to parents.

In Ellis v. Hamilton, 669 F.2d 510 (7th Cir. 1982), the Seventh Circuit Court of Appeals considered the due process claims of plaintiffs Amy Ellis and Zella Frazier, who filed suit after various county welfare agents commenced proceedings that led to the removal of minor relatives from their homes and the children's eventual adoption by strangers. Mrs. Frazier was the natural mother, and Mrs. Ellis was the natural aunt, of the children's father, Larry, who had been adopted by Mrs. Ellis as a child. Thus, Mrs. Frazier was the children's biological paternal grandmother, and Mrs. Ellis was the children's adoptive (and legal) grandmother. After Larry and his wife proved to be unfit parents, their four children were taken in and cared for at various points by the plaintiffs. At the time of the alleged wrongdoing, two of Larry's children resided with Mrs. Ellis and two with Mrs. Frazier. The plaintiffs alleged that, after initially consenting to this placement, the defendant welfare officers had ordered the plaintiffs to surrender the children on two days' notice and without any explanation, after which time the children were placed in unsuitable foster care settings. It was further alleged that, following the termination of Larry's and his wife's parental rights, the defendants arranged for the adoption of the children by private parties and obstructed the plaintiffs' participation in those proceedings.

In considering the viability of the plaintiffs' claims on motions for summary judgment, the court began with the premise that "[i]t is plain... that the 'liberty' protected by the due process clause of the Fourteenth Amendment includes the right to the custody of one's minor children and that it would be a deprivation of that liberty without due process of law for persons acting under color of state law permanently to separate the children from their parents without notice and hearing." Ellis, 669 F.2d at 512. However, the court found no similar right on the part of Mrs. Frazier, noting that "[t]he interest of a natural grandmother in grandchildren born long after their parent was adopted away seems too tenuous to be part of the liberty protected by the due process clause." Id.

The Ellis court then went on to consider the liberty interests of Mrs. Ellis herself, noting that, while her liberty interest was stronger, the court was "not sure that even it should be accepted." Id., 669 F.2d at 512. Bypassing the fact that Mrs. Ellis was not a biological grandparent, the court considered the "more fundamental" question "whether even a natural grandparent's interest in the society of her grandchildren, though an interest rooted in powerful emotions, is a liberty interest under the due process clause."

Id. at 513. The court declined to definitively rule out such a possibility, despite what it termed "the absence of compelling authority" to support such a liberty interest. Id. Although the court doubted that this kind of liberty interest could exist where the grandchildren remain in their parents' custody, 669 F.2d at 513, it distinguished Mrs. Ellis's situation, crediting the allegation that Mrs. Ellis had been in loco parentis to her grandchildren at the time the defendants took them away from her. Id. Under such circumstances, the court stated, it was "reluctant to conclude that a great-aunt, an adoptive grandmother, and a de facto mother and father all rolled up into one does not have a liberty interest sufficiently like that of a parent to support an action under section 1983." Id. Key to the court's analysis was the fact that Mrs. Ellis claimed to have had formal custody of her grandchildren when the defendants took them from her home. "As custodians," the court reasoned, the plaintiffs "might well have had a right of action if the children had been tortiously injured or killed while living with them ..." Id. at 514. Thus, the Ellis court was prepared to assume the existence of a constitutionally protected liberty interest on the part of Mrs. Ellis relative to the continued custody and maintenance of her grandchildren. Nevertheless, it went on to hold that no due process violation had occurred because Indiana law provided adequate remedies for the correction of any errors which had occurred in the course of the legal proceedings. See generally 669 F.2d at 514-16.

The Second Circuit recognized a constitutionally protected liberty interest on the part of a biological relative in Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982), where the plaintiff was a half-sister to the children in question and had assumed care for them in her own home at the request of their mentally ill mother and pursuant to a foster care agreement. While recognizing that foster parents generally do not enjoy the same liberties as natural parents vis-a-vis the children in their care, the Second Circuit nevertheless concluded that the plaintiff, Dorothy Rivera, was more akin to a natural parent, given the fact that she was principally responsible for the care and upbringing of the children for a number of years, and had been since their infancy, prior to the state's involvement.

Citing to the Supreme Court's decision in Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977) -- a case addressing the due process rights of foster parents, the Rivera court noted that foster parents typically are not afforded constitutional protection relative to their relationships with their foster families due to three considerations: first, there is usually no biological link between the foster parent and the children in their care; second, the source of the foster family relationship is a contract whereby the parties' rights are "carefully circumscribed by the state," 696 F.2d at 1024, and third, there is "virtually unavoidable tension" between the protection of the natural parents' liberty interests on one hand and the extension of familial rights in favor of foster parents on the other. Id. The Rivera court noted that the case before it was distinguishable from the typical foster removal case, however, inasmuch as (i) Mrs. Rivera was biologically related to her half-siblings; (ii) they had lived together as a family for several years prior to a foster care agreement being consummated; and (iii) there was no potential for conflict with the rights of the natural mother, as she had shown no interest in the children for 12 years, was in a mental institution, and was likely to remain there. Id. "In these circumstances," the court found, "Mrs. Rivera possesse[d] an important liberty interest in preserving the integrity and stability of her family." Id. at 1024-25. The court went on to state that "custodial relatives like Mrs. Rivera are entitled to due process protections when the state decides to remove a dependent relative from the family environment," id. at 1025, and, in fact, the court found Mrs. Rivera's situation virtually indistinguishable from that of the plaintiff grandmother in the Moore case. Citing other relevant considerations, such as "the expectations of the parties at the time the [foster] relationship was commenced" and "the age and previous living experience of the children prior to entering the foster care environment," id. , the court found that these factors also weighed strongly in favor of extending due process protection to the plaintiff, since she had cared for the children almost from birth, had continued to act as their "surrogate mother" after their natural mother was institutionalized, and had assumed responsibility for them well before the foster care agreement was consummated.

In a case distinguishable from Rivera, the Ninth Circuit Court of Appeals held that a biological grandmother had no constitutional interest in the adoption or society of her grandchildren where the grandmother had only maintained occasional contact with her grandchildren and lacked any emotional, financial or custodial history with them. In Mullins v. State of Oregon, 57 F.3d 789 (9th Cir. 1995), the subject children were dependents of the state of Oregon when the plaintiffs (the grandmother and her husband) sought, unsuccessfully, to adopt them. Notwithstanding the plaintiffs' assertion that they possessed a constitutional right to keep their "family" intact, the court of appeals stated that the case was "[not] about breaking up an extant family unit," but rather "creating a new family unit where none existed before." 57 F.3d at 794. On the facts before it, the court found that the plaintiff grandmother was identical, in every material respect, to every other "prospective adoptive parent," save for her biological link. The court distinguished the ruling in Moore v. City of East Cleveland, supra, stating that "[a] negative right to be free of governmental interference in an already existing familial relationship does not translate into an affirmative right to create an ...

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