Lynch v. King

• Decision Date: 20 September 1982
• Docket Number: Civ. A. No. 78-2152-K.
• Citation: 550 F. Supp. 325
• Parties: Patricia LYNCH, et al., Plaintiffs, v. Edward J. KING, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

550 F. Supp. 325

Patricia LYNCH, et al., Plaintiffs, v. Edward J. KING, et al., Defendants.

Civ. A. No. 78-2152-K.

United States District Court, D. Massachusetts.

September 20, 1982.

COPYRIGHT MATERIAL OMITTED

Pamela Taylor, Jeffrey Witten Kobrick, Paula Barbara Mackin, Juvenile Law Reform Project, Boston, Mass., for plaintiffs.

Thomas Spirito, Com'r, Dept. of Public Welfare, Maureen L. Fox, Asst. Atty. Gen., Boston, Mass., Mary Jane England, Com'r, Dept. of Social Services, Paul F. Ware, Jr., Paul E. Nemser, Sp. Asst. Attys. Gen., Goodwin, Procter & Hoar, Boston, Mass., for defendants.

KEETON, District Judge:

This class action tests the jurisdiction and competence of the court to provide a remedy for a case of human tragedy. Simply and candidly stated, the facts are that children have suffered unspeakable injuries to body and spirit. They have suffered, it is true, because of circumstances beyond the reach of the most benign and effective protection any government has ever afforded. But, as well, children have suffered because state officials charged with protecting them have fallen short of what they undertook to do.

In the motion now before the court, plaintiffs seek relief designed to bring Massachusetts' foster care system into compliance with federal requirements the Commonwealth promised to fulfill as a condition of receiving federal funding. As to this request, however sufficient the plaintiffs' proof and the court's jurisdiction may appear, the stark reality is that judicial power to give effect to rights created by Congress is meager. No doubt a primary factor in the failure of protection of victimized children has been limited resources. And yet, ironically, the only relief the court can award is an order compelling state officials to give up some of those resources — funds appropriated by Congress — if federal requirements are not met. Thus, it may be that the only remedy the court can provide is a remedy that we shall later know to have been worse than none, and yet a remedy the court must grant when sought by persons legitimately entitled to demand it.

I.

In August of 1978, plaintiffs brought this action on behalf of themselves and a class later certified by the court,¹ alleging that Massachusetts' system for providing foster care and child welfare services violates the due process clause of the Fourteenth Amendment, the Social Security Act (codified at 42 U.S.C. §§ 601 et seq.), and regulations promulgated by the Secretary of Health and Human Services ("the Secretary"). The case is currently before the court on plaintiffs' motion for a preliminary injunction, filed on August 7, 1981. Hearings on plaintiffs' motion, at which plaintiffs and defendants presented evidence, were held intermittently commencing on August 13, 1981 and terminating on June 9, 1982. Plaintiffs and defendants subsequently filed several written submissions. The court now grants, in part, the preliminary injunction sought by plaintiffs. This opinion sets forth findings of fact and conclusions of law.²

At the outset, it is important to determine which of the many provisions of the Social Security Act and implementing regulations³ cited in various submissions by plaintiffs are now before the court as bases of claims for preliminary relief. Plaintiffs' complaint, alleging generally in paragraph 1 "defendants' failure to comply with ... 42 U.S.C. §§ 608, 625 and 45 C.F.R. §§ 220.1 et seq.," asserts causes of action under the provisions codified at 42 U.S.C. § 608 and 45 C.F.R. §§ 1392.40, 1392.40(b)(3), 1392.3, and 1392.5. See ¶¶ 80-86. Elsewhere in the complaint, plaintiffs indicate that the specific regulatory provisions upon which they rely are 45 C.F.R. §§ 1392.40(b)(3), 1392.5(a), 1392.3(b), and 1392.10. See ¶ 38. In the memorandum of June 9, 1981, the court, in considering defendants' motion to dismiss, examined only plaintiffs' claims under 42 U.S.C. § 608 and 45 C.F.R. §§ 1392.40(b)(3), 1392.5(a), 1392.3(b), and 1392.10. With respect to plaintiffs' claims of entitlement to "services,"⁴ the court concluded that, of the provisions examined, only 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3) serve as proper bases for these claims by creating rights enforceable in an action under 42 U.S.C. § 1983. See June 9, 1981 Memorandum and Order, at 18. At that time, however, the court did not consider the effect on plaintiffs' claims of the Adoption Assistance and Child Welfare Act of 1980 ("the 1980 Act"), Pub.L. No. 96-272, 94 Stat. 518 (1980).

In their motion for preliminary injunction filed August 7, 1981, plaintiffs claim under a regulation, 45 C.F.R. § 1392.92, not cited in their complaint and not examined in the memorandum of June 9, 1981. In submissions filed after the close of the hearings on plaintiffs' motion for preliminary injunction, plaintiffs seek to rely on additional provisions neither referred to in their complaint nor previously examined by the court. See, e.g., Plaintiffs' Proposed Order, June 15, 1982; July 26, 1982 Letter accompanying Plaintiffs' Opposition to Defendants' Motion.

Although they indicated in their most recent submission that they would do so, see Plaintiffs' Memorandum in Response to the Court's Procedural Order, at 2, plaintiffs have not filed a motion to amend their complaint to include causes of action under the provisions, other than 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3), cited in their submissions filed after June 9, 1981. Defendants have objected to plaintiffs' assertion of rights to relief under any provisions other than 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3). In these circumstances, I conclude that it is appropriate, for purposes of the current motion, to consider only claims under 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3). As explained more fully below, however, see parts IV.A, V.A., infra, because of special problems created by the amendments effected by the 1980 Act, I will also consider provisions in Title IV-B (42 U.S.C. §§ 621 et seq.) and Title IV-E (42 U.S.C. §§ 671 et seq.) that contain requirements analogous to those found in 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3).⁵ Plaintiffs are, of course, free to file, before the trial on the merits in this case, a motion to amend their complaint to state claims under any statutory provisions or regulations not considered here.

II.

In the First Circuit, a plaintiff seeking a preliminary injunction bears the burden of satisfying four criteria:

(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits, and (4) that the public interest will not be adversely affected by the granting of the injunction.

Massachusetts Association for Retarded Citizens v. King, 668 F.2d 602, 607 (1st Cir. 1981), quoting Massachusetts Coalition of Citizens v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir.1981).

Each of these criteria, with respect to plaintiffs' claims under 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3) and relevant analogous provisions, is considered below.

III. Claims Under 42 U.S.C. § 608

A. Likelihood of Success on the Merits

Plaintiffs allege that defendants have violated 42 U.S.C. § 608 by

... failing to develop and periodically review service plans and by failing to provide social services to prevent the initial or on-going need for foster care and/or to improve conditions in natural homes ...

Plaintiffs' Complaint, ¶ 80; and by

... failing to provide adequate numbers of trained and qualified social workers to evaluate plans, to develop and review service plans and to provide social services ...

Plaintiffs' Complaint, ¶ 82.

42 U.S.C. § 608 is part of Title IV-A, establishing the Aid to Families with Dependent Children-Foster Care program ("AFDC-FC"), which is one component of the Aid to Families with Dependent Children program ("AFDC") created by the Social Security Act. In King v. Smith, the Supreme Court summarized the legal framework of AFDC as follows:

The AFDC program is based on a scheme of cooperative federalism ... States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available ... are required to submit an AFDC plan for the approval of the Secretary of Health and Human Services ... The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by the Secretary.

392 U.S. 309, 316-17, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968) (citations omitted).

42 U.S.C. § 602(a) requires that "a State plan for aid and services to needy families with children ... (20) ... provide for aid to families with dependent children in the form of foster care in accordance with section 608 of this title." Section 608 limits federal payments for such aid to those states "whose State plan approved under section 602 of this title —

(e) includes aid for any child described in paragraph (a) of this section,⁶ and

(f) includes provision for (1) development of a plan for such child (including periodic review of the necessity for the child's being in a foster family home or child care institution) to assure that he receives proper care and that services are provided which are designed to improve the conditions in the home from which he was removed or to otherwise make possible his being placed in the home of a relative specified in section 606(a) of this title ...

As noted above, the court concluded in the June 9, 1981 Memorandum and Order that 42 U.S.C. § 608 creates rights enforceable by plaintiffs in an action brought under 42 U.S.C. § 1983. In this opinion the court is called upon to define the scope of the rights secured by section 608(f), to determine whether plaintiffs have proved violations of those rights sufficient to justify preliminary relief, and, if so, to fashion an...