New York v. U.S. Dept. of Health and Human

• Decision Date: 13 February 2009
• Docket Number: Docket No. 07-3858-cv.
• Parties: State of NEW YORK, by and through The NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES' ADMINISTRATION FOR CHILDREN AND FAMILIES and Charles E. Johnson, Acting Secretary of The Department of Health and Human Services,<SMALL><SUP>1</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

556 F.3d 90

State of NEW YORK, by and through The NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES' ADMINISTRATION FOR CHILDREN AND FAMILIES and Charles E. Johnson, Acting Secretary of The Department of Health and Human Services,¹ Defendants-Appellees.

Docket No. 07-3858-cv.

United States Court of Appeals, Second Circuit.

Argued: December 12, 2008.

Decided: February 13, 2009.

Victor Paladino, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Andrew Bing, Deputy Solicitor General, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, for Plaintiff-Appellant.

Kelsi Brown Corkran, Attorney, Appellate Staff, Civil Division, Department of Justice, Washington, D.C. (Mark B. Stern, Attorney, Appellate Staff, Civil Division, and Jeffrey S. Bucholtz, Acting Assistant Attorney General, on the brief), for Defendants-Appellees.

Before RAGGI, LIVINGSTON, Circuit Judges, and CASTEL, District Judge.²

REENA RAGGI, Circuit Judge:

Plaintiff State of New York sued defendants United States Department of Health and Human Services ("HHS") Administration for Children and Families ("ACF") and HHS Acting Secretary Charles E. Johnson in the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge) for failing to reimburse the state for certain foster care maintenance payments as provided by federal law. See 42 U.S.C. §§ 670-679b (Part E, "Federal Payments for Foster Care and Adoption Assistance"). Invoking the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, New York asserts that defendants cannot rely on the state's undisputed failure to satisfy the "judicial determination" condition outlined in 45 C.F.R. § 1356.21(b)(2) to justify the challenged reimbursement refusal because that regulation is in conflict with the statute it implements, 42 U.S.C. § 672(a)(1).³ Having failed to persuade the district court of this argument, New York now appeals a judgment entered on July 17, 2007, which dismissed its complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

We conclude that the state's case was properly dismissed because it rests on a misconstruction of § 672(a)(1). That statute conditions federal reimbursement for foster care maintenance payments on a demonstration that a child's removal to foster care "was the result of a judicial determination to the effect . . . that reasonable efforts of the type described in section 671(a)(15) of this title for a child have been made." 42 U.S.C. § 672(a)(1). The quoted language plainly signals Congress's intent to incorporate the full range of "reasonable efforts" required by § 671(a)(15). Thus, when Congress expanded § 671(a)(15) through a provision of the 1997 Adoption and Safe Families Act, Pub.L. No. 105-89, § 101(a), 111 Stat. 2115, 2116-17, that expanded definition of "reasonable efforts" was incorporated in § 672(a)(1)'s "judicial determination" requirement. Because we construe § 672(a)(1) to incorporate § 671(a)(15) as amended, and because 45 C.F.R. § 1356.21 is based on that amended statute's definition of "reasonable efforts," New York cannot demonstrate that the regulation is inconsistent with the law and, thus, cannot state a claim under the APA for which relief can be granted. Accordingly, we affirm the judgment of dismissal.

I. Background

A. Statutory Background

Preliminary to discussing the particular facts giving rise to this case, we review the statutory scheme at issue.

In 1980, as part of the Adoption Assistance and Child Welfare Act, Pub.L. No 96-272, § 101, 94 Stat. 500, 501-13 (1980), Congress amended the Social Security Act by creating Title IV-E, which provides for "reimbursement to the states" of part of the "foster care maintenance and adoption assistance payments made by the states on behalf of eligible children" when the states satisfy the requirements of the Act.⁴ Vermont Dep't of Soc. & Rehab. Servs. v. U.S. Dep't of Health & Human Servs., 798 F.2d 57, 59 (2d Cir.1986) (discussing amendment); see Suter v. Artist M., 503 U.S. 347, 351, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992) (same). To participate in the federal reimbursement program, a state must create a plan for payment that meets the requirements of 42 U.S.C. § 671(a), and that plan must be approved by the Secretary of HHS pursuant to § 671(b). The § 671(a) requirement relevant to this appeal demands that a state plan "provide[ ] for foster care maintenance payments in accordance with section 672 of this title." 42 U.S.C. § 671(a)(1). Under § 672(a)(1), foster care maintenance payments are to be made only if a child's parents or legal guardian entered into a voluntary agreement for foster placement, or "the removal . . . was the result of a judicial determination to the effect [1] that continuation [in the home from which the child was removed] would be contrary to the welfare of such child and [2] (effective October 1, 1983) that reasonable efforts of the type described in section 671(a)(15) of this title for a child have been made." Id. § 672(a)(1) (2003). It is § 672(a)(1)'s requirement that a state obtain a "judicial determination" that it has made "reasonable efforts of the type described in section 671(a)(15)" that is at issue in this case.

Prior to 1997, the "reasonable efforts" requirement of § 671(a)(15) was reflected in the following language:

In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which . . .

(15) effective October 1, 1983, provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home.

42 U.S.C. § 671(a) (1983). Thus, prior to 1997, if a child's removal to foster care was not voluntary, a state was required to obtain a judicial determination that (1) continuation of the child in the home from which he was removed was contrary to his welfare, and (2) the state had made reasonable efforts (a) to prevent or eliminate the need to remove the child from his home, and (b) to make it possible for the child to return to his home. New York does not dispute that, prior to 1997, it was obliged to satisfy these requirements to qualify for federal reimbursement of its foster care maintenance payments.

In 1997, with the enactment of the Adoption and Safe Families Act, Congress expanded the description of "reasonable efforts" in § 671(a)(15), placing the original language in subpart (B), while providing for the whole to read as follows:

In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which . . .

(15) provides that —

(A) in determining reasonable efforts to be made with respect to a child, as described in this paragraph, and in making such reasonable efforts, the child's health and safety shall be the paramount concern;

(B) except as provided in subparagraph (D), reasonable efforts shall be made to preserve and reunify families —

(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and

(ii) to make it possible for a child to safely return to the child's home;

(C) if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child;

(D) reasonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that —

(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse);

(ii) the parent has —

(I) committed murder . . . of another child of the parent;

(II) committed voluntary manslaughter . . . of another child of the parent;

(III) aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter; or

(IV) committed a felony assault that results in serious bodily injury to the child or another child of the parent; or

(iii) the parental rights of the parent to a sibling have been terminated involuntarily;

(E) if reasonable efforts of the type described in subparagraph (B) are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in accordance with subparagraph (D) —

(i) a permanency hearing (as described in section 675(5)(C) of this title) shall be held for the child within 30 days after the termination; and

(ii) reasonable efforts shall be made to place the child in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child; and

(F) reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts of the type described in subparagraph (B).

Id. § 671(a).

Legislative history indicates that these amendments were prompted by the "growing belief that Federal statutes, the social work profession, and the courts sometimes err on the side of protecting the rights of parents." H.R. Rep. 105-77, at 8 (1997), reprinted in 1997 U.S.C.C.A.N. 2739, 2740. Congress decided that "[r]ather than abandoning the Federal policy of helping troubled families, what is needed is a measured response to allow States to adjust their statutes and practices so that in some circumstances States will be able to move more efficiently...