T.M. ex rel. H.C. v. DeWine

• Decision Date: 28 September 2022
• Docket Number: 21-3752
• Citation: 49 F.4th 1082
• Parties: T.M., NEXT FRIEND on behalf OF H.C. and Y.C., et al., Plaintiffs-Appellants, v. Richard Michael DEWINE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

49 F.4th 1082

T.M., NEXT FRIEND on behalf OF H.C. and Y.C., et al., Plaintiffs-Appellants,

v.Richard Michael DEWINE, et al., Defendants-Appellees.

No. 21-3752

United States Court of Appeals, Sixth Circuit.

Argued: June 7, 2022

Decided and Filed: September 28, 2022

ARGUED: Paul B. Lewis, DLA PIPER LLP (US), Boston, Massachusetts, for Appellants. Mathura J. Sridharan, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Paul B. Lewis, DLA PIPER LLP (US), Boston, Massachusetts, Julie A. Gryce, DLA PIPER LLP (US), San Diego, California, Daniel Turinsky, Jonathan M. Kinney, DLA PIPER LLP (US), New York, New York, Jay R. Langenbahn, LINDHORST & DREIDAME, CO., L.P.A., Cincinnati, Ohio, Eric Thompson Ira Lustbader, Stephanie Persson, CHILDREN'S RIGHTS, New York, New York, Richard F. Dawahare, RICHARD F. DAWAHARE, ESQ., Lexington, Kentucky, for Appellants. Mathura J. Sridharan, Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. Guenther Karl Fanter, BAKER & HOSTETLER LLP, Cleveland, Ohio, Susan Baker Manning, MORGAN LEWIS & BOCKIUS LLP, Washington, D.C., for Amici Curiae.

Before: McKEAGUE, NALBANDIAN, and READLER, Circuit Judges.

NALBANDIAN, J., delivered the opinion of the court in which McKEAGUE, J., joined. READLER, J. (pp. 1092–97), delivered a separate opinion concurring in part and in the judgment.

NALBANDIAN, Circuit Judge.

Child foster care systems in this country are administered by the various state governments. The federal government, however, will reimburse states, like Ohio, for "foster care maintenance payments" that the state makes to certified foster caregivers who meet federal-eligibility requirements. In Ohio, there are also foster caregivers whom the state does not certify as meeting those federal requirements. So Ohio withholds payments for those caregivers. Instead, Ohio provides these non-certified caregivers with less generous payments through a separate state program. The plaintiffs here are a group of foster caregivers whom Ohio has considered ineligible to receive the higher foster care maintenance payments but who argue that they meet the federal requirements and are thus entitled to those payments. So they have sued Ohio Governor Mike DeWine and the Director of the Ohio Department of Job and Family Services.

The district court dismissed the Plaintiffs’ claims, finding that the Plaintiff caregivers do not have to meet the same licensing standards as licensed caregivers in Ohio and thus were not "foster family homes" as required by federal law. Because Title IV-E of the Social Security Act requires that all foster family homes eligible for payments under federal law meet the same licensing standards, we agree with the district court that the Plaintiffs are not eligible to receive the foster care maintenance payments and affirm.

I.

A. Title IV-E

By enacting the Adoption Assistance and Child Welfare Act of 1980 ("CWA"), Congress used its Spending Clause powers to create Title IV-E of the Social Security Act and set up a statutory scheme for states to administer foster care systems. Title IV-E lays out requirements for states that receive federal funds, such as having a state plan approved by the Secretary of the Department of Health and Human Services ("HHS"). Ohio receives Title IV-E funds and has a state plan approved by the HHS. See H.C. v. Governor of Ohio , No. 1:20-cv-00944, 2021 WL 3207904, at *4 (S.D. Ohio July 29, 2021).

Like other Spending Clause legislation, Title IV-E's federal money has strings attached. See Armstrong v. Exceptional Child Ctr., Inc. , 575 U.S. 320, 323, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015). Along with Ohio's state plan conforming with the other requirements set out in 42 U.S.C. § 671(a), Ohio must provide foster care maintenance payments ("FCMPs") to eligible children and their caregivers. See 42 U.S.C. § 671(a)(1).

Like other states, Ohio claims reimbursements under Title IV-E for FCMPs made to eligible recipients. Congress set out eligibility requirements in Title IV-E, see id. § 672, and HHS has offered regulatory guidance, see generally 45 C.F.R. §§ 1355, 1356. Relevant here, for a child to be eligible to receive FCMP's, the child must be "placed in a foster family home." 42 U.S.C. § 672(a)(2)(C). Title IV-E defines a "foster family home" as a home:

(i) that is licensed or approved by the State in which it is situated as a foster family home that meets the standards established for the licensing or approval; and (ii) in which a child in foster care has been placed in the care of an individual, who resides with the child and who has been licensed or approved by the State to be a foster parent[.]

Id. § 672(c)(1)(A). States with approved plans "shall" make FCMPs to eligible children. Id. § 672(a)(1).

State plans must also maintain licensing standards for foster family homes "reasonably in accord with recommended standards of national organizations," and these standards must apply to the homes of children receiving FCMPs. Id. § 671(a)(10)(A)–(B). Importantly, the state plan sets forth the specific criteria that the state is going to apply in order to determine FCMP eligibility. This set of criteria is then approved by HHS as part of the state-plan approval and future reviews. See 45 C.F.R. § 1356.71(d).

B. Foster Care in Ohio

Ohio has two foster care systems. One is Ohio's Title IV-E program, operated in accordance with Ohio's state plan approved by the HHS Secretary. See generally Ohio Rev. Code § 5101; Ohio Admin. Code 5101:2-47. Caregivers eligible for this program become "certified" by the state, which means they are "licensed" caregivers under Title IV-E. Ohio Rev. Code § 5103.03(B)(2). The other program is a separate, state-run foster-care system for non-certified foster caregivers who are deemed ineligible to participate in Title IV-E. See Ohio Admin. Code 5101:2-42-18.

The Ohio Department of Job and Family Services ("ODJFS" or "Department") administers both systems. For Title IV-E purposes, the Department regulates the licensing of foster care homes and issues "certificates" to foster homes that it concludes meet Title IV-E's requirements. See Ohio Rev. Code § 5103.03(B)(2). Not every caregiver's home meets those requirements. For instance, while Title IV-E allows waivers for some standards for foster family homes, it specifically prohibits waivers for safety standards. 42 U.S.C. § 671(a)(10)(D). But at the same time, Title IV-E contains a "preference" for placing children with relatives. See id . § 671(a)(19). As a result, Ohio runs its state foster care system for non-certified foster caregivers to provide an avenue for children to be placed with relatives. In effect, Ohio operates this separate system to place children with relatives who are not already certified caregivers (and thus ineligible for FCMPs), and pays them to care for the children, albeit less than the FCMPs.

The Department promulgates rules to administer the state system. See Ohio Rev. Code § 5101.881. Before December 2020, all non-certified caregivers were eligible for financial assistance from Ohio Works First (the financial assistance portion of Ohio's Temporary Assistance for Needy Families program) or from other public-benefits programs. See Ohio Admin. Code 5101:2-42-18(B)(8)(b). During this litigation, the Ohio legislature passed, and Governor Mike DeWine signed into law, Amended Substitute Senate Bill 310. The bill, which went into effect the same day, created the Kinship Support Program ("KSP"). See Ohio Rev. Code § 5101.881. The KSP provides financial assistance to non-certified relative caregivers who receive temporary or permanent custody of children in the foster care system but are not certified by the state as foster care homes under Title IV-E. See id. §§ 5101.884, 5103.03.

Under the KSP, non-certified caregivers are subject to different standards than certified caregivers eligible for FCMPs. See H.C. , 2021 WL 3207904, at *12 (comparing standards). In turn, these non-certified caregivers in the state system receive a per diem less than the amount licensed caregivers receive from FCMPs. Compare Ohio Rev. Code § 5101.885, with Ohio Admin. Code § 5101:2-47-19. But Ohio encourages non-certified caregivers to get certified as a licensed foster family home. If a caregiver fails to obtain certification within six or nine months, the payments end. See Ohio Rev. Code § 5101.886. Likewise, if a caregiver receives a certificate, KSP payments also cease and FCMPs begin. See id. §§ 5101.887, 5101.889.

C. Procedural History

The Plaintiffs here are four foster children and four of their relative foster caregivers. The caregivers brought a putative class action against Governor DeWine and the then-director of ODJFS, in their official capacities.¹ The Plaintiffs alleged that the Defendants, acting under color of state law, are depriving the Plaintiffs of their statutory rights to FCMPs under 42 U.S.C. § 672(a), in violation of 42 U.S.C. § 1983. They sought declaratory and injunctive relief.²

The Plaintiffs moved to certify their classes and for a preliminary injunction. Ohio opposed the motions and moved to dismiss the case. The district court granted the motions to dismiss and denied as moot the motions for class certification and a preliminary injunction. H.C. , 2021 WL 3207904, at *14. The district court determined that Governor DeWine was immune from suit under the Eleventh Amendment, see id. at *8, a ruling the Plaintiffs don't challenge on appeal. But the district court ruled that the ODJFS Director was not entitled to sovereign immunity because the suit fell within the Ex parte Young exception. See id. at *7 (citing Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ). On the merits, the district court concluded that there is a single set of federal eligibility requirements under Title IV-E for caregivers in Ohio to qualify for FCMPs. And because the Plaintiffs did not meet the same federally-approved standards...