Yvonne L., By and Through Lewis v. New Mexico Dept. of Human Services

• Decision Date: 24 March 1992
• Docket Number: No. 90-2196,90-2196
• Citation: 959 F.2d 883
• Parties: YVONNE L., a minor; Demond L., a minor, By and Through their guardian ad litem and next friend, Kemp LEWIS, Plaintiffs-Appellants, v. NEW MEXICO DEPARTMENT OF HUMAN SERVICES; Juan R. Vigil, individually and as former Secretary of the New Mexico Department of Human Services; Thomas Kerley, individually and as Director of the San Juan County Social Services Division of the New Mexico Department of Human Services; Judy Stolz, individually and as Social Worker for the San Juan Social Services Division of the New Mexico Department of Human Services; John Doe; Jane Doe, unknown employees of Child Haven, Inc.; John Doe, II; James Doe, II, unknown employees of the New Mexico Department of Human Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 883

959 F.2d 883

YVONNE L., a minor; Demond L., a minor, By and Through their guardian ad litem and next friend, Kemp LEWIS, Plaintiffs-Appellants, v. NEW MEXICO DEPARTMENT OF HUMAN SERVICES; Juan R. Vigil individually and as former Secretary of the New Mexico Department of Human Services; Thomas Kerley, individually and as Director of the San Juan County Social Services Division of the New Mexico Department of Human Services Judy Stolz, individually and as Social Worker for the San Juan Social Services Division of the New Mexico Department of Human Services; John Doe; Jane Doe, unknown employees of Child Haven, Inc.; John Doe, II; James Doe, II, unknown employees of the New Mexico Department of Human Services Defendants-Appellees.

No. 90-2196.

United States Court of Appeals Tenth Circuit.

March 24, 1992.

Christopher T. Dunn, Children's Rights Project, American Civil Liberties Union, New York City (Ann Yalman, Susan Schaefer McDevitt, Santa Fe, N.M., and Frederick Moeller, Durango, Colo., on the briefs), for plaintiffs-appellants.

Paula G. Maynes (John B. Pound with her on the briefs), of Montgomery & Andrews, Santa Fe, N.M., for defendants-appellees.

Christopher T. Dunn and Marcia Robinson Lowry, New York City, filed an amicus curiae brief on behalf of the American Civil Liberties Union Children's Rights Project.

Before LOGAN, SEYMOUR and MOORE, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiffs, Yvonne L. and Demond L., by and through their guardian ad litem, Kemp Lewis, appeal from the district court's grant of summary judgment against them in this 42 U.S.C. § 1983 case. On appeal, we must determine (1) whether an individual right of action exists to recover money damages in a § 1983 action for violations of § 101(a)(10) of the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 671(a)(10); and (2) whether the law was clearly established in August 1985 that a child in the state's legal and physical custody, placed by the state in a privately operated crisis shelter group home, had a constitutional right to be protected from bodily harm from private third parties which the case workers knew or suspected would likely occur.

I

Yvonne L. and Demond L. are minor children who were in the physical and legal custody of the state of New Mexico Human Services Department (HSD). HSD had placed them with a foster family from April 1, 1983, to August 1, 1984, and then with their maternal grandparents, in the role of foster parents, with the state retaining legal custody. When their grandmother died suddenly in August 1985, HSD placed the children with Child Haven, Inc., a not-for-profit corporation which operated a foster care and shelter care facility for children.

The children were placed in Child Haven pursuant to an arrangement allowing the state to request placement of children under twelve in Child Haven in accordance with state regulations. At the time of placement, defendant Juan Vigil was the secretary of the HSD, defendant Thomas Kerley was the field office manager for the HSD office in Farmington, New Mexico, and defendant Judy Stolz was the HSD case worker for Yvonne and Demond.

Plaintiffs allege that while Yvonne was at Child Haven she was sexually assaulted and that Demond witnessed the incident. Christine B., a minor resident of Child Haven, allegedly sodomized and raped Yvonne and verbally threatened Demond in an unsupervised area of Child Haven on August 16, 1985.

Plaintiffs brought this § 1983 action against state officials and HSD social workers for alleged violations of plaintiffs' federal statutory and constitutional rights while in foster care. ¹ Specifically, plaintiffs argue that if defendants had properly monitored Child Haven, they would have not placed the children in the facility due to the "general operation of Childhaven and the particular characteristics of the children residing in Childhaven at that time." I R. tab 171 at 3.

The district court granted summary judgment for defendants, finding there can be no money damages in a § 1983 suit based on violations of the AACWA. The court also found there was no clearly established constitutional right in August 1985 protecting a child in the legal and physical custody of the state, who was placed in a privately operated crisis shelter group home, from bodily harm from third persons. Because the court found no clearly established right, the court upheld the qualified immunity defenses of defendants. The district court dismissed the complaint, and plaintiffs appeal.

We review the trial court's grant of summary judgment by examining the record "to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied." McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir.1988) (quoting Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986)). We review the district court's determination of issues of law de novo. E.g., United States v. Maher, 919 F.2d 1482, 1485 (10th Cir.1990).

II

Plaintiffs allege that defendants in their individual capacities violated provisions of the AACWA, codified at 42 U.S.C. § 671(a), causing plaintiffs damages that they may recover under § 1983. The district court found that the AACWA created rights "to a case review system, to a case plan for each child, and, possibly, standards reasonably in accord with those of national organizations." I R. tab 178 at 8. The court concluded, however, that because the AACWA is a spending statute, it creates no right to money damages under § 1983.

Section 1983 provides a private cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. In Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983 generally is available to remedy violations of federal statutes. A § 1983 action is foreclosed, however, if (1) the federal statute does not create enforceable rights, or (2) Congress specifically has foreclosed private enforcement of the statute. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (quoting Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987)). The threshold inquiry in determining if a statute creates a federal right enforceable under § 1983 is "whether 'the provision in question was intend[ed] to benefit the putative plaintiff.' " Id. (quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989)) (alteration in original). If so, a right is created unless the provision

reflects merely a "congressional preference" for a certain kind of conduct rather than a binding obligation on the governmental unit, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 19 [101 S.Ct. 1531, 1541, 67 L.Ed.2d 694] (1981), or unless the interest the plaintiff asserts is "too vague and amorphous" such that it is "beyond the competence of the judiciary to enforce."

Id. (quoting Golden State, 493 U.S. at 106, 110 S.Ct. at 448 (quoting Wright, 479 U.S. at 431-32, 107 S.Ct. at 774-75)). We apply this analysis to the applicable provisions of the AACWA.

The AACWA ² establishes a program under which states can receive federal payments for state foster care programs. See 42 U.S.C. §§ 620-28, 670-76. The AACWA provides funds to states that have received federal approval for their state plans. Id. § 670. Under the AACWA,

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

. . . . .

(10) provides for the establishment or designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, and provides that the standards so established shall be applied by the State to any foster family home or child care institution receiving funds under this part or part B of this subchapter;

(11) provides for periodic review of the standards referred to in the preceding paragraph and amounts paid as to foster care maintenance payments and adoption assistance payments to assure their continuing appropriateness;

. . . . .

(16) provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meet the requirements described in section 675(5)(B) of this title with respect to each such child; ....

42 U.S.C. § 671(a) (1983) (as amended by Pub.L. No. 98-378 § 11(c), 1984 U.S.C.C.A.N. (98 Stat.) 1318).

The statute was enacted "[f]or the purpose of enabling each State to provide, in appropriate cases, foster care and adoption assistance for children." 42 U.S.C. § 670 (1983) (amended 1986). Defendants properly do not dispute that children in state foster care, including plaintiffs, are intended beneficiaries of the AACWA.

The next inquiry is whether the AACWA "reflects merely a 'congressional preference' for a certain kind of conduct rather than a binding obligation on the government unit." Wilder, 110 S.Ct. at 2517 (citing Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 19, 101 S.Ct. 1531, 1541, 67 L.Ed.2d 694 (1981)). In Pennhurst, the Supreme Court found that § 6010 of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 42 U.S.C. § 6000 et seq., did not create a binding obligation because "neither the statute nor the corresponding regulations made compliance with the provision a condition of receipt of federal funding." Wilder, 110...