According to a recent (1-27-2017) opinion of the US Court of Appeals, 6th Circuit (D.O.; A.O.;R.O. v Glisson, Sec. Cabinet for Health and Family Services, ___US____, No.16-5461 (6th Circuit 2017), reversing a district court’s decision, the Federal Child Welfare Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. Sec. 1983.
FACTS:
As is often the
case with important cases, the facts are simple. In 2012, Kentucky’s Health and
Family Services brought a Dependency, Neglect and Abuse proceeding against the
mother of two boys. The mother stipulated to the charges and the boys were
placed in foster care. Plaintiff R.O, the mother’s aunt, sought and secured
custody of the children. In Sept. of 2014, the family court closed the action
and granted joint custody to both the mother and the aunt, although the boys
continued living with the aunt.
R.O. filed a motion with family
court seeking foster care maintenance payments. The family court declined to
rule so RO turned to the state court arguing:
·
That the federal Child Welfare Act required the
state to provide maintenance payments and
·
Failure to make payments violated the
Constitution’s Equal Protection and Due Process Clauses.
The Cabinet removed the case
to federal court and filed a motion to dismiss. The district
court granted the Cabinet’s motion, reasoning that:
·
The Child Welfare Act doesn’t provide private
enforceable rights,
·
The family lacked a property interest in the
payments and
·
Kentucky’s scheme rationally distinguished
between relative and non-relative foster care providers.
The family appealed.
The appellate
court cited three sections of the Child Welfare Act, which supports state-run
foster care and adoptions for children removed from low income families. First,
to be eligible for federal funds, a state must submit a 35-point plan to the
Secretary of Health and Human Services. Second, the plan must
provide foster care maintenance payments for each child and, finally, once
the moneys are spent, the state can be reimbursed by the federal government.
The 6th Circuit saw as the central
issues on appeal:
·
Whether the Act confers upon foster families a
private right to foster care maintenance payments; and
·
Whether that right is enforceable under sec.
1983.
The 6th Circuit held that the Act
confers upon families an individually enforceable right to foster care
maintenance payments because:
·
The Act mandates payments “on behalf of each
child.” 42 U.S.C sec.672(a)(1),
·
The Act confers a monetary entitlement upon
qualified foster families and includes an itemized list of expenses, and
· The
Acts “shall make” language “imposes a binding obligation on the States.”
Both the Supreme
Court and the Sixth Circuit have found that laws phrased in the active voice,
with the state as the subject, confer individually enforceable rights.
Enforcement under Sec 1983:
Having shown that
the statute creates a private there is a rebuttable presumption that the right
is enforceable under sec. 1983. Stating that “Absent resort to sec 1983, foster
families possess no federal mechanism to ensure compliance with the Act,” the
court held that the “Act confers families with an individual right to foster
care maintenance payments enforceable under Sec.1983.
Are the Plaintiffs entitled to
maintenance payments?
Yes. Section 672(a) restricts the class
of children entitle to benefits in two ways; (1) the child must be in Cabinet’s
custody—once placed in permanent guardianship, no payments are required and (2)
child must be placed in an approved “foster family home.”
The facts supporting the payment:
·
The children were not discharged from the
Cabinet’s care because the “order of permanent custody was not on the required
form AOC-DNA 9 according to Kentucky law,”
·
The Cabinet didn’t provide evidence that the
family court held a permanency hearing or discharged the children from the
Cabinet’s care.
Is the aunt’s home an approved
“foster family home?”
·
The law provides for two types of foster
families—licensed foster homes that provide care for unrelated children and
foster homes that provide care for relative children,
·
The Cabinet approved R.O. to be a foster parent
Where the Cabinet
fails to make maintenance payments on the distinction between relative and
non-relative foster care providers, it violates federal law. Rather any home
the State approves as meeting its licensing standards falls within the
definition. If Kentucky is denying benefits because the aunt is related to the
children, it is violating federal law.
The court reversed
the district court’s decision. Upon remand the court shall determine whether
the Cabinet maintains responsibility for the children’s placement and care. If
the Kentucky discharges the children, the district court shall dismiss the
case. If not, the court shall award foster care maintenance payments.
Labels: appeal, appeals, family law appeal, Federal Child Welfare Act, Foster Care Maintenance Payments, Foster Parent, Michigan, Michigan Appeal, Michigan Family Law Appeals
