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.