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Deliberate Indifference, Professional Judgment, And The Constitution: On Liberty Interests In The Child Placement Context, Mark Strasser

Mark Strasser

Courts and commentators often argue that because adoption is created by state law, there can neither be a constitutional right to adopt nor to be adopted. They sometimes suggest that the major Supreme Court case in this area--Smith v. Organization of Foster Families For Equality and Reform (OFFER)—expressly rejects that there can be rights in the adoption context. Yet, the relevant constitutional jurisprudence is much more nuanced than these courts and commentators suggest, because the issue has not been correctly framed. The focus of discussion should be on whether there is a constitutionally protected liberty interest in the state’s not …