D.O. v. Glisson

• Decision Date: 27 January 2017
• Docket Number: No. 16-5461,16-5461
• Parties: D.O.; A.O.; R.O., Plaintiffs-Appellants, v. Vickie Yates Brown GLISSON, in her official capacity as Secretary for the Cabinet for Health and Family Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

847 F.3d 374

D.O.; A.O.; R.O., Plaintiffs-Appellants,

v.Vickie Yates Brown GLISSON, in her official capacity as Secretary for the Cabinet for Health and Family Services, Defendant-Appellee.

No. 16-5461

United States Court of Appeals, Sixth Circuit.

Argued: November 29, 2016

Decided and Filed: January 27, 2017

ARGUED: Richard F. Dawahare, MCCLELLAND & ASSOCIATES, PLLC, Lexington, Kentucky, for Appellants. David Brent Irvin, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellee. ON BRIEF: Richard F. Dawahare, MCCLELLAND & ASSOCIATES, PLLC, Lexington, Kentucky, for Appellants. David Brent Irvin, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellee.

Before: DAUGHTREY, CLAY, and COOK, Circuit Judges.

OPINION

COOK, Circuit Judge.

The federal Child Welfare Act ("the Act") specifies that "[e]ach State with a plan approved under this part shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative ... into foster care." 42 U.S.C. § 672(a). This appeal asks whether the Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. § 1983. We find that it does, and therefore reverse the district court's contrary decision.

I.

In 2012, Kentucky's Health and Family Services commenced a Dependency, Neglect, and Abuse proceeding against the mother of two young boys. The mother stipulated to neglecting her children, and Kentucky placed both boys in foster care. Plaintiff R.O., the mother's aunt, sought custody of the children. The state "conducted a standard home evaluation and criminal background check on R.O. and eventually both children were placed in her home by Court Order." In September 2014, the family court closed the action and granted joint custody to both the mother and the aunt, though the boys remained living with the aunt.

R.O. filed a motion with the family court seeking foster care maintenance payments. The court declined to rule on the issue, however, "indicating that permanency had been achieved." R.O. then sued the Secretary for Kentucky's Cabinet for Health and Family Services ("the Cabinet" or "Kentucky") in state court, arguing that the federal Child Welfare Act required the state to provide maintenance payments, and that the 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, or in the alternative, a motion for summary judgment. The district court granted the Cabinet's motion, reasoning that the Child Welfare Act provides no privately enforceable rights, that the family lacked a property interest in the payments, and that Kentucky's scheme rationally distinguished between relative and non-relative foster care providers. The family appealed.

II.

The court "review[s] a grant of summary judgment de novo, construing the evidence and drawing all reasonable inferences in favor of the nonmoving party." Hirsch v. CSX Transp., Inc. , 656 F.3d 359, 362 (6th Cir. 2011) (citing Martin v. Cincinnati Gas & Elec. Co. , 561 F.3d 439, 443 (6th Cir. 2009) ). "Summary judgment is appropriate where the movant demonstrates that there is ‘no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Rocheleau v. Elder Living Constr., LLC , 814 F.3d 398, 400 (6th Cir. 2016) (quoting Fed. R. Civ. P. 56(a) ).

III.

In 1980, Congress passed the Child Welfare Act, also known as Title IV-E of the Social Security Act. This federal-state grant program facilitates state-run foster care and adoption assistance for children removed from low-income homes. See 42 U.S.C. § 670. Congress passed the Act under its Spending Clause power, U.S. Const. art. I, § 8, and like other federal-state cooperative programs, states are given the choice of complying with the Act's conditions or forgoing federal funding.

Three sections of the Act are relevant here. First , to be eligible for federal funds, a state must submit a plan to the Secretary of Health and Human Services that satisfies thirty-five specific criteria. 42 U.S.C. § 671(a). If a state's plan fails to "substantial[ly] conform[ ]" to the Act's requirements, id. § 1320a-2a, the Secretary, after giving the state an opportunity to implement a corrective action plan, must withhold federal money, id. § 1320a-2a(b)(3)(A), (4)(A).

Second , the plan must "provide[ ] for foster care maintenance payments in accordance with section 672." Id. § 671(a)(1). Under § 672, "[e]ach State with a plan approved under this part shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative ... into foster care." Id . § 672(a)(1). Foster care maintenance payments cover the cost of, among other things, the child's food, clothing, and shelter. Id. § 675(4)(A).

Third , after the state remits maintenance payments to the foster family, it may seek partial reimbursement from the federal government. Section 674(a)(1) provides that "each State which has a plan approved under this part shall be entitled to a payment equal to the sum of" an "amount equal to the Federal medical assistance percentage ... of the total amount expended during such quarter as foster care maintenance payments under section 672 of this title for children in foster family homes or child-care institutions."

IV.

We first address the central issues on appeal: 1) whether the Act confers upon foster families a private right to foster care maintenance payments; and 2) whether that right is enforceable under § 1983.

1. Private Right

Title 42 U.S.C. § 1983 imposes liability on anyone who, acting under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." This section authorizes suits to enforce individual rights under federal statutes as well as the Constitution. Maine v. Thiboutot , 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Nonetheless, " § 1983 does not provide an avenue for relief every time a state actor violates a federal law." City of Rancho Palos Verdes v. Abrams , 544 U.S. 113, 119, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Rather, "to sustain a § 1983 action, the plaintiff must demonstrate that the federal statute creates an individually enforceable right in the class of beneficiaries to which he belongs." Id. at 120, 125 S.Ct. 1453 (citing Gonzaga Univ. v. Doe , 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) ).

For this court to find an individually enforceable right: 1) "Congress must have intended that the provision in question benefit the plaintiff"; 2) the asserted right must not be "so vague and amorphous that its enforcement would strain judicial competence"; and 3) "the statute must unambiguously impose a binding obligation on the States." Blessing v. Freestone , 520 U.S. 329, 340–41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (internal citations and quotation marks omitted).

To illustrate, in Harris v. Olszewski , 442 F.3d 456 (6th Cir. 2006), we evaluated whether Medicaid's freedom-of-choice provision established enforceable rights. The provision reads: "A State plan for medical assistance must ... provide that [ ] any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required." 42 U.S.C. § 1396a(a)(23). We held that the provision granted Medicaid-recipients an individually enforceable right to choose their medical provider, reasoning that the phrase "any individual eligible for medical assistance" evinced "the kind of individually focused terminology that unambiguously confers an individual entitlement under the law." Harris , 442 F.3d at 461 (internal citation and quotation marks omitted). We noted that "the mandate [ ] does not contain the kind of vagueness that would push the limits of judicial enforcement." Id. at 462. And we explained that "the ‘must ... provide’ language of the provision confirms that the statute is ‘couched in mandatory, rather than precatory, terms.’ " Id . (omission in original) (quoting Blessing , 520 U.S. at 341, 117 S.Ct. 1353 ); see also Barry v. Lyon , 834 F.3d 706, 717 (6th Cir. 2016) (holding that the federal Supplemental Nutrition Assistance Program—mandating that "[a]ssistance under this program shall be furnished to all eligible households," 7 U.S.C. § 2014(a) —created a privately enforceable statutory right).

By contrast, in Gonzaga University the Supreme Court held that the Family Educational Rights and Privacy Act ("FERPA") failed to grant students a privacy right in their education records. 536 U.S. at 290, 122 S.Ct. 2268. The relevant statutory section provided:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization.

Id. at 279, 122 S.Ct. 2268 (omission in original) (quoting 20 U.S.C. § 1232g(b)(1) ). The Court reasoned in part that FERPA lacked "the sort of ‘rights-creating’ language critical to showing the requisite congressional intent to create new rights." Id. at 287, 122 S.Ct. 2268 (citing Alexander v. Sandoval , 532 U.S. 275, 288–89, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), and Cannon v. Univ. of Chi. , 441 U.S. 677, 690 n.13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) ). In particular, "FERPA's provisions speak only to the Secretary of Education, directing that ‘no funds shall be made available’ to any ‘educational agency or institution’ which has a prohibited ‘policy or practice.’ " Id . (quoting 20 U.S.C. § 1232g(b)(1) ). The nondisclosure provisions evinced an "aggregate focus" that "speak only in terms of institutional policy and practice, not...