A Case for Revisiting the Child Welfare Act
Hannah Dudley, A Case for Revisiting the Child Welfare Act
A Case for Revisiting the Child Welfare Act
Hannah Dudley 0 1
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1 D.O. v. Glisson, 847 F.3d 374, 375–76 (6th Cir. 2017),cert. denied 138 S. Ct. 316(2017)
(reversing the decision of the U.S. District Court for the Eastern District of Kentucky by ruling
that the Federal Adoption Assistance and Child Welfare Actof 1980 (the “Act”) created a
privately enforceable right to foster care maintenance payments which can be enforced through the use of
42 U.S.C. § 1983).
2 Id. at 376.
3 Id. One specific part of the Act outlines a mechanism in which states give foster care parents
“foster care maintenance payments” and the state can laterbe reimbursed by the
federalgovernment if the state follows certain guidelines. 42 U.S.C§. 672(a) (2012). Foster care maintenance
payments serve the purpose of bolstering the foster family’s income in order to better take care of
the foster child. Id. § 675(4)(A). The payment includes money to cover the cost of, among other
things, food, clothing, shelter, and daily supervision. Id. The foster care maintenance payments are
a small part of a larger plan which is approved by theSecretary of Kentucky’s Cabinet for Health
and Family Services (the “Secretary”). Id. § 671(a). The Secretary oversees the administration of
the Act; therefore, the children’s aunt filed suit against the Secretary to ensure enforcement of the
Act. Id. § 676; see Glisson, 847 F.3d at 376.
Circuit.4 The Supreme Court recently denied a Petition for Writ of
Certiorari.5 In 2013, in Midwest Foster Care and Adoption Ass’n v. Kincae,d the
Eighth Circuit held that the Act failed to create a privately enforceable right
and that the Act cannot be enforced using § 1983.6
This Comment analyzes the arguments of both the Sixth and Eighth
Circuits.7 Part I provides a detailed background of the Act, explains what is
needed to create a privately enforceable right, and discusses the rebuttable
presumption of § 1983 enforceability.8 Part II details the apparent
splitbetween decisions from the Sixth and EighthCircuits.9 Part III analyzes the
circuit split and ultimately finds that because the intent of Congress does
not align with the proper analysis of the statute, this issue should be left
alone by the courts and given to Congress to fix.10
I. HOW IS A PRIVATE RIGHT CREATED, AND WHAT PART DOES § 1983 PLAY?
Section A of this Part developsand discusses the history of theAct.11
Section B discusses what is necessary for a right to be deemed a “privately
enforceable right.”12 Section C explains the presumption of § 1983
enforceability once a right is deemed to be a privately enforceable right.13
A. The Act
The safety and welfare of the nation’s children has long been a goal of
Congress.14 In 1935, Congress passed the Social Security Act, providing
federal funds to states to encourage them to participate in a variety of fd-i
4 See Glisson, 847 F.3d at 376(contrasting with the Eighth Circui’ts decision in which the
court held that the Act is a privately enforceable right); Midwest Foster Care & Adoption Ass’n v.
Kincade, 712 F.3d 1190, 1194 (8th Cir. 2013) (holding that the Act is not a privately enforceable
5 Glisson, 847 F.3d 374, 375–76, cert. denied 138 S. Ct. 316.
6 Kincade, 712 F.3d at 1194.
7 Glisson, 847 F.3d at 376; Kincade, 712 F.3d at 1203.
8 See infra notes 11–51 and accompanying text.
9 See infra notes 55–103 and accompanying text.
10 See infra notes 104–129 and accompanying text.
11 See infra notes 14–25 and accompanying text.
12 See infra notes 26–37 and accompanying text.
13 See infra notes 38–51 and accompanying text.
14 See HOUSE WAYS & MEANS COMM., Child Welfare Legislative History, in GREEN BOOK
legislative-history [https://perma.cc/4XW9-5RPJ] (presenting background material and data on the
major U.S. entitlement programs). The protection of childrenas an objective of federal policy
noticeably began in 1912 when Congress created the Federal Childs’ Bureau, initiated to
“investigate and report” matters dealing with child welfare and safety. Id.
ferent welfare systems.15 In 1980, Congress enacted Title IV-E of the Social
Security Act, otherwise known as theAct.16 The Act regulates the stat-e
managed foster care and adoption systems for children who are removed
from the homes of their families and details the process in which “foster
care maintenance payments” are provided to families who take in foster
care children.17 The purpose of the Act is to equip states to support foster
care families and children during the child’s journey into their foster care
home and also to encourage movement within the foster care system.18
The Act outlines three important steps that states must follow in order to
be eligible for reimbursement.19 First, each state must submit and approve a
proper plan to the Secretary of Health and Human Services20. A proper plan
must contain thirty-six features that force a specific level of state oversight by
requiring, among other things, that local level programs are coordinated with
state programs and that the state monitor and evaluate foster care activities.
If the plan does not lay out all thirt y-six features and the state fails to correct
the plan, then the government will withhold federal fundin g22. Second, each
state must provide “foster care maintenance payments” for each child who
has been taken from the home of a relative and assigned into the foster care
15 See id. (showing that beginning in 1935 there were multiple additions and amendments to
the Social Security Act that were aimed primarily at increasing the amount of funding states were
receiving to help protect children and also increasing the number of children that were eligible for
16 See 42 U.S.C. § 670 (2012) (declaring that the purpose of Title IVE- is to enable statesto
provide for foster care children and to authoritzhee appropriations that would be paid to the
17 See id. (declaring congressional purpose); id. § 672(a) (explaining the eligibility
requierments for the state, foster care placement, Aid to Families with Dependent Children, and alien
children). Title IV-E of the Social Security Act covers the entiretyof the Act, and within Title
IVE, there are many different sections pertaining to different parts of the Act. Id. §§ 670–679(c).
18 Id. § 670. The Act served to “establish a program of adoption assistance, to strengthen the
program of foster care assistance for needy and dependent children, to improve the child welfare,
social services, and aid to families with dependent children programs, and for other purposes.”
Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500 (codified at
42 U.S.C. §§ 670–679(c)).
1942 U.S.C. §§ 672, 674(a).
20 Id. § 671(a).
21 Id. § 671(a)(1)–(36). These features in this plan include that the state mus:t (1) declare that
the it will report any sort of abuse of the child; (2) grant an individual the right to a “fair hearing”
if the individual’s afforded benefits are denied; (3) make reasonable efforts to “preserve and
reunify families”; (4) aid in the creation of a case plan for “each child receiving foster care maintenance
payments”; and (5) make provisions for health insurance coverage for children with special needs.
22 See id. § 671(a) (detailing the features necessary for astate’s plan to be approved by the
Secretary which then makes the state eligible for federal reimbursement fo“rfoster care
system.23 The costs provided include expenses such as the child’s food,
clothing, and shelter.24 The final relevant section of the Act details the process of
how states will receive reimbursement from the federal government after
providing maintenance payments to foster families. 25
B. When Is a Right a Private Right?
To determine whether a statute createsa privately enforceable right
under § 1983, one must look to Congresisonal intent to determine whether
the legislation was meant to “unambiguously” create a privately enforceable
right.26 In 1997, in Blessing v. Freestone, the Supreme Court laid out three
factors for courts to consider in assessing Congressional intent in this
context.27 First, Congress must have intended to benefit the plainti.ffSecond,
the right being conveyed must be clear and not “so vague and amorphous
that its enforcement would strain judicial competen.”ceThird, the right
must create a “binding obligation” for the states.28 To reach the
determination that Congress intended to benefit the plaintiff, etrheby satisfying the
first factor, a court should conducta three prong analysis, considering
whether: (1) the statute contained “rights-creating language;” (2) the statute
has an individual and not an “aggregate focu;s” and (3) there is a “federal
23 See id. § 672(a)(1) (mandating “foster care maintenance payments” for each child who has
been removed from a relative’s home and placed into the foster care system).
24 See id. § 675(4)(A) (defining the term“foster care maintenance payment”s as payments
that provide for items such as “food, shelter, daily supervision, school supplies, a child’s personal
incidentals, liability insurance with respect to a child, reasonable travel to the chsildh’ome or
visitation, and reasonable travel for the child to remain in the school in which the child is enrolled
at the time of placement”).
25 See id. § 674(a) (explaining that states shall be reimbursed equal to the percentage of
medical assistance required of the foster care maintenance payments).
26 See Gonzaga Univ. v. Doe,536 U.S. 273, 280, 28–283 (2002) (holding that a privately
enforceable right is created when it can be determined that Congress intended to create that private
27 See Blessing v. Freestone, 520 U.S. 329, 340–41 (1997) (finding that where Congress
intended to benefit the plaintiff, the rightconveyed is clear, and the right creates an obligation for
the state, a privately enforceable right is created).
28 Glisson, 847 F.3d at 377 (citing Blessing, 520 U.S. at 340–41); see Gonzaga, 536 U.S. at
(clarifying the Blessing test in that it is “rights” and not “benefits” or “interests” that are
enforced using § 1983)
; see also Barbara Vargo, Who Can Sue? The Sixth Circuit in D.O. v. Glisson
Deepens the Split Over a Private Right of Action to Foster Care Maintenance Paym5e1nts,
CREIGHTON L. REV. 215, 218 (2017) (explaining that the Sixth Circuit’s reasoning inGlisson was
based on the three factor test set forth inBlessing to decide if the statute created a privately
29 See Kincade, 712 F.3d at 1196–97 (citing Gonzaga, 536 U.S. at 287, 289–90) (finding that
the first factor of the Blessing test is met when the statute contains “rights-creating language,” the
statute does not have an “aggregate focus,” and there is no “federal review mechanism”).
In 2006, in Harris v. Olszewksi, the Sixth Circuit held that Medicaid’s
“freedom-of-choice” provision was a privately enforceable right3.0 In
Harris, Medicaid recipients argued that the statute’s freedo m-of-choice
provision created a privately enforceable right and sought to challenge thestate
of Michigan’s procedure for regulating incontinence products through
Medicaid, which gave all distribution rights to a single distributo3r.1 After
analyzing the three factors outlined above, the Sixth Circuit held that the
provision allowed Medicaid users to choose their own healthcare sources; thus, it
created a privately enforceable right.32 In Harris, the court reasoned that all
three factors had been met, emphasizing thatCongress intended the statute
to benefit the individual because thefreedom-of-choice provision included
the language “any individual eligible for medical
assistance33.”Furthermore, the court determined that the provision was not “vague” or
“amorphous” and that it created an obligatory duty, binding upon the state.34
In contrast, in 2012, in Gonzaga University v. Doe, the Supreme Court
held that the Family Educational Rights and Privacy Actof 1974 (“FERPA”)
did not give students a privately enforceable right to keep their education
records private.35 Here, the Court found that the provision failedto satisfy the
first factor of the Blessing test because the provision hda no rights creating
language, had an aggregate effect, and simply provided regulation to the
Secretary of Education.36 Thus, after assessing these three prongs and
determin30 See 42 U.S.C. § 1396a(a)(23) (2012) (codifying the“freedom-of-choice” provision by
stating that individuals eligible for Medicaid may receive medical assistance from any place
ceritfied to execute the services needed); Harris v. Olszewksi, 442 F.3d 456, 460 (6th Cir. 2006)
(holding that Medicaid’s freedom-of-choice provision satisfied all three factors that are neededto
consider a privately enforceable right created).
31 Harris, 442 F.3d at 460. The plaintiffs pursued relief using § 1983, arguing that because the
state only allowed a single providerto distribute incontinence products for Medicaid recipients in
Michigan, the state was disobeying the freedom-of-choice provision. Id.
32 Id. at 460–61. The Sixth Circuit found that the Medicaid provision at question passed the
three factors laid out in Blessing. Id. First, the court reasoned that by stating “any individual
eligible for medical assistance,” the statute was intending to benefit the individual plaintiff,
specificlaly beneficiaries that are eligible for Medicaid coverage.Id. at 461. Second, the mandate does not
“contain the kind of vagueness that would push the limits of judicial enforcem”enItd.. at 462.
Finally, the statute uses mandatory terms like “must. . . provide” creating a “binding obligation”
for the state. Id.
33 Id. at 461.
34 Id. at 462.
35 Compare id. at 460 (holding that as the statute at issueprovided individuals the ability to
choose any qualified provider or supplier,it was focused on the individual being benefited,thus
creating a privately enforceable right), with Gonzaga, 536 U.S. at 276, 287 (holding that where the
statute simply regulated the state as an actori,t did not focus on the individual being benefited,
thus failing to create a privately enforceable right).
36 Gonzaga, 536 U.S. at 290. The Court in Gonzaga clarified that § 1983 can only be used to
enforce the “rights, privileges, or immunities secured by the Constitution and lawsI.d”. at 283.
The court reasoned that the statute speaks directly to the Secretary of Education, simply directing
his or her actions; there is no essence of the “individual entitlement” that § 1983 serves to enforce.
ing the first factor of the Blessing test was not met, the Court found that
Congress did not intend to benefit the plaintiff in question through FERPA.37
C. The Presumption of § 1983 Enforceability
Section 1983 serves as a mechanism to protect individual rights that
have been secured by the Constitution or laws of the United States3.8 For a
statute to be enforceable under §1983, the statute must create a right for
individuals, not simply consist of a lawper the three part test in Blessing.39
For example, Medicaid reimbursements have been found tocomprise a
privately enforceable right4.0 Section 1983 is often used as an enforcement
mechanism for individuals’ rights secured by the Constitution or the laws
that do not have their own enforcement scheme in place.41
Once it has been established that a private right was created by a
sepcific statute, there becomes a rebuttable presumption that the right ins- e
Id. at 287. In addition, there is no “rights-creating language” that shows Congress’s intent to
convey a new right. Id.; see Vargo, supra note 28, at 228 (explaining that the court in Gonzaga
decided that the Family Educational Rights and Privacy Act of 1974(“FERPA”) did not create a
pirvately enforceable rights because it lacked “rights-creating language,” focused largely on the
Secretary of Education and not the individual, and provided for a review board to investigate potential
violations that provided the plaintiff with other ways to pursue his rights).
37 Gonzaga, 536 U.S. at 287, 290–91.
38 42 U.S.C. § 1983 (2012); see Gonzaga, 536 U.S. at 285
(explaining that§ 1983 is used to
carry out rights “secured by the Constitution and laws of the United States”)
; Blessing, 520 U.S. at
(noting that a plaintiff has to be enforcing a “federal right” and that § 1983 is not to be used to
enforce an abuse of federal law)
. Section 1983 came into existence with the Civil Rights Act of
1871. Bradford C. Mank,Suing Under § 1983: The Future After Gonzaga University v. Doe, 39
HOUS. L. REV. 1417, 1426 (2003). Section 1983 assisted in preserving the civil rights of African
Americans when former Confederates attempted to re-establish slavery. Id. In its beginning stages,
§ 1983 only guaranteed “Constitutional rights” and did not refer to lawIsd.. In 1874, Congress
supplemented the statute with the verbiage “and laws.”Id. There was a lot of debate about what
this additional verbiage added to the statute.Id. Finally, in 1980, the Supreme Court, inMaine v.
Thiboutot, held that the meaning of the words “and laws” in the statute referred to “federal
statutory rights”; consequently, the Court allowed private individuals who were intended to benefit from
those rights to bring suit under § 1983. Id. at 1430.
39 Blessing, 520 U.S. at 340 (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103,
106 (1989)). See generally MARTIN A. SCHWARTZ & KATHRYN R. URBONYA, SECTION 1983
LITIGATION (Geoffrey Erwin et al. eds., 2d ed. 2008) (discussing the threBelessing factors that
distinguish a federal right from a federal law); Barbara J. Van Arsdale et aCl.,ivil Rights, in 15
AMERICAN JURISPRUDENCE, SECOND EDITION § 69 (2018)
(explaining that in order for a statute
to be enforced using § 1983, it must be found that Congress planned for the statute to be a
privaetly enforceable right)
40 See Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 514 (1990)
(finding the Boren Amendment
to be a privately enforceable righ,treasoning that it satisfies all of theBlessing factors and that
Congress did not set forth a sufficiently elaborate independent enforcement mechanism to
disqualify § 1983 enforcement mechanisms)
41 Mank, supra note 38 at 1437. If a statute has an “unusually elaborate” enforcement
mechanism used to enforce compliance, then § 1983 cannot be used as an avenue for enforcement. Id.
forceable using § 1983.42 This presumption can be rebutted if a party shows
Congress intended for § 1983 to not be available as a means of enforcement
for the specific right at issue.43 Congress can close off § 1983 as an avenue
for enforcement either “expressly” or “impliedly.”44 If Congress expressly
closes off § 1983 by explicitly stating that it is not to be used as a remedy
for a specific right, then 1§983 cannot be an option for enforceabilit4y5.
Congress can also imply that a specific right is not to be enforced by § 1983
by creating a “comprehensive enforcement scheme” that is not compatible
with § 1983; although to date, courts have only interpretedthis to have
occurred twice.46 If Congress is determined to have not closed off § 1983
enforceability, individuals can use § 1983 to protect the private right at issue.47
Notably, the mere availability of an enforcement mechanismwithin a
statute does not, in and of itself, defeat the possibility of § 1983
enforceabil42 See Blessing, 520 U.S. at 341 (finding that dismissal is appropriate when Congress
purposely deprives the plaintiff of § 1983 as a remedy)
43 Id. The use of § 1983 is rarely rebutted, but, if it is rebutted, the defendant has to prove that
Congress intended to “specifically foreclose” the use o§f1983 as an enforcement mechanism.
Mank, supra note 38, at 1420.
44 Blessing, 520 U.S. at 341.
46 Id. For instance, in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n,
the plaintiffs were fishermen off the coast of New Yo, raknd the Court found that theFederal
Water Pollution Control Act (“FWPCA”)could not be enforced using§ 1983. Middlesex Cty.
Sewerage Auth. v. Nat’l Sea Clammers Ass’n,453 U.S. 1, 13–14 (1981). The plaintiffs’ ability to
harvest fish was diminishing due to water pollution; accordingly,they brought suit against
multiple government entities, stating that the government allowedcompanies to “dump” their polluted
materials into the water. Id. at 4–5. The plaintiffs argued that this dumping was inconsistent with
the FWPCA. Id. at 5 n.6. Looking to the intent of Congress in drafting and passing the FWPCA,
the Supreme Court reasoned that thestatute had “unusually elaborate enforcement” mechanisms.
Id. at 13–14. The Court reasoned that because of the explicit enforcement mechanismprsesent
within the FWPCA, Congress did not intend any other enforcement provisions to be used in
connection with the statute. Id.; see also Smith v. Robinson, 468 U.S. 992, 1009, 10101–1 (1984)
(holding that where“carefully tailored” administrative enforcement mechanisms that could be
reviewed by the court,s if necessary, were present, those independent enforcement mechanisms
were sufficient to find that Congress did not intend for § 1983 to be used as an enforcement
mechanism for the Education of the Handicapped Act, as § 1983 would essentially make the
independent enforcement mechanisms redundant)
47 Wilder, 496 U.S. at 521.The Supreme Court considered the question of whether§ 1983
could be used by healthcare providers to challenge a state’s Medicaidreimbursement procedures.
Id. at 501. The plaintiff, the Virginia Hospital Association, filed suit against various Virginia
officials arguing that Virgini’as reimbursement policy violates the Boren Amendmenbtecause the
rates were neither economic nor efficient. Id. at 503. The defendants filed a motion to dismis,s
arguing that § 1983 was not the appropriate enforcement mechanism.Id. at 504. The defendants
asserted that Virginia had provided an elaborate system to ensure efficient payments andthat any
individual could appeal their reimbursement rates.Id. at 520. Ultimately, the Court found that the
systems that were put in place by Virginia were not elaborate enough tcoonclusively show
congressional intent to foreclose § 1983 enforceability. Id. at 522.
ity.48 In 1987, in Wright v. Roanoke Redevelopment & Housing Authority,
the Supreme Court heldthat the “generalized powers” of the Secretary of
Housing and Urban Development to investigate and enforce housing
contracts did not constitute an elaborate enough enforcement mechanism to cut
off § 1983 enforceability.49 Thus, it is clear that where there are
enforcement mechanisms available, § 1983 enforceability is not automatically
foreclosed.50 In fact, to foreclose a privately enforceable right from198§3,
courts have determined that the enforcement mechanism Congress provides
must be “unusually elaboraet,” so that there is not a question owfhether
Congress aimed to have a secondary remedy through the use of § 1983.51
II. FOSTER CARE MAINTENANCE PAYMENTS: ARE THEY
A PRIVATELY ENFORCEABLE RIGHT?
Section A of this Part discusses the merits and ruling of D.O. v. Glisson
in regards to a privately enforceable right.52 Section B of this Part discusses
42 U.S.C. § 1983 enforceability, the rebuttable presumption that is created,
and discusses the Sixth Circuits ruling that the Child Welfare Act ni-s e
forceable using § 1983.53 Part C of this Section compares the Eighth Circuit
ruling that the Child Welfare Act is not enforceable using § 1983.54
A. D.O. v. Glisson: Foster Care Maintenance Payments
Are a Privately Enforceable Right
In D.O. v. Glisson, the state of Kentucky placed two boys into the
foster care system after Kentucky’s Health and Family Servicesagency began
a Dependency, Neglect, and Abuse proceeding against their mother in
48 Blessing, 520 U.S. at 347; see Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S.
418, 428 (1987)
(holding that the enforcement scheme was not elaborate enough to prove
“congressional intent” to impede § 1983 enforcement)
; Nat’l Sea Clammers Ass’n, 453 U.S at 20
(finding that where the enforcement scheme was “comprehensive” and there was little space for a
§ 1983 action, a §1983 action could not be used to bypass the already provided enforcement
49 Wright, 479 U.S. at 428; see Wilder, 496 U.S. at 522
(holding that the Secretary of Health
and Human Services’ similar “generalized powers” to oversee Medicaid funding and reject
specific plans could not be considered an elaborate enough enforcement mechanism to close off§ 1983)
50 Blessing, 520 U.S. at 347.
51 See Nat’l Sea Clammers Ass’n, 453 U.S. at 13–14
(finding that where a statute contains
unusually elaborate enforcement provisions which allows authority to sue both individuals and the
gvoernment, § 1983 cannot be used to enforced the actM)
; ank, supra note 8 at 1437
(stating that a
§ 1983 suit is not appropriate if there is an “unusually elaborate” enforcement structure within the
52 See infra notes 55–84 and accompanying text.
53 See infra notes 85-92 and accompanying text.
54 See infra notes 93-103 and accompanying text.
2012.55 Shortly after the boys’ placement,the plaintiff, the mother’s aunt,
pursued custody of the two childre5n6.The children were placed in the
aunt’s care after Health and Family Services analyzed her home and
conducted a background check5.7 In September 2014, the court granted joint
custody to both the mother and aunt; however, the boys continued to live
with their aunt.58 The aunt then filed a motion in family court, requesting
foster care maintenance payments from the state of Kentucky.59 The family
court did not directly rule on this issue.60
The children’s aunt subsequently sued the Secretary of Kentucky’s
Cabinet for Health and Family Services (the “Cabinet”) in federal court,
contending that the Act required the state to pay her foster maintenance payment6s1.
The district court granted the Cabinet’s motion for summary judgmentx, -e
plaining that the Act provides no privately enforceable righ6ts2.The district
court reasoned that 42 U.S.C. § 672(a) focused on “the persons or the
institution being regulation,” and thus, it did not focus on “the individuals who
benefit.”63 The district court further stated that the statute does not
“unambuigously confer a right to support a cause of action6.”4 The district court
determined that the Act did not meet the first requirement necessaryto create a
privately enforceable right, as the statute does not indicate Congressional
intention to benefit the plaintiff.65 The aunt appealed this decision.66
55 D.O. v. Glisson, 847 F.3d 374, 376 (6th Cir. 201;7)see KY. REV. STAT. ANN. § 620.070
(West 2017) (codifying the process by which a Dependency, Neglect and Abuse proceeding is
initiated—by the filing of a petitioner by an interested person and then service of a summons upon
the parent); id. § 620.080 (codifying that a court proceeding will occur in which it will be
determined if the child would be dependent, neglected or abused if left in the custody of the parent, and
if so, they will be removed from the home).
56 Glisson, 847 F.3d at 376.
On appeal, the Sixth Circuit concluded that the Act does in fact op-r
vide a privately enforceable righta,s foster parents are owed foster crea
maintenance payments.67 The Sixth Circuit explained that, in order to find a
privately enforceable right, Congress’s intention needs to be that thestatute
“benefit the plaintiff,” the right cannot be “so vague and amorphous” that
implementing it would “strain judicial competence,” and the statute must
“unambiguously impose a binding obligation on the States.”68
The Sixth Circuit reasoned that the Act specifically intended to benefit
foster care children.69 The state of Kentucky argued that the Act focusedon
the state, directing the state to regulate the payments and that the proof lies
in the fact that the Act iwsritten in the active voice.70 The court found,
however, that an act written inthe active voice does notnecessarily
preclude a statutory provision from being aimed at benefitting the plaintif7f1.
The court reasoned that the provision states that payments are to be made
“on behalf of each child,” thus focusing on benefiting specific individuals.72
Turning to whether the Act’s language is too vague, the court found
that the Act is not amorphous, but rather specifically lists all of the financial
needs that the state is required to cover.73 The court further reasoned that the
lack of specific monetary amounts that need to be paid to foster parentsin
the Act does not necessarily make the Act “vague” or “amorphous.7”4 The
Act details that the payments are to provide funding for items such as “food,
clothing, shelter, [and] daily supervision.”75 The Act allows for some
flexibility on behalf of the foster parents regarding what brand of food they will
purchase or where they will shop for clothing, so the Act cannot specify the
exact costs of such purchases.76 These cost decisions are predicated by the
stores near a family’s home, their particular preferences, and other similar
68 Id. at 377 (citing Blessing, 520 U.S. at 340–41); see Harris v. Olszewksi, 442 F.3d 456,
459–60 (2005) (holding that through the use of the three aforementioned factors, Medsicaid’
“freedom-of-choice provision” creates a privately enforceable right).
69 Glisson, 847 F.3d at 378.
70 Id. at 378–79. Kentucky argued that 42 U.S.C. § 674(a)(1) uses an active voice because the
subject, the state, performs the action of making foster care maintenance. Id.
71 See id. at 379 (detailing that the Supreme Court and the SixthCircuit have held that laws
phrased in active voice can create a privately enforceable right).
72 Id. at 378 (distinguishing the facts in the current case from the facts inGonzaga University
v. Doe, where the act simply focused on regulating the governmental agency director, compared to
the Act that focuses on the needs of the individual).
73 42 U.S.C. § 675(4)(a); Glisson, 847 F.3d at 378.
74 Glisson, 847 F.3d at 379.
75 42 U.S.C. § 675(4)(a).
76 Glisson, 847 F.3d at 379–80; see Wilder v. Va. Hosp. Ass’n, 496 U.S. 495, 519 (1990)
(“That the [statute] gives the States substantial discretion in choosing among reasonable methods
of calculating rates may affect the standard under which a court reviews whether the rates comply
with the [statute], but it does not render the [statute] unenforceable by a court.”).
factors; yet, the court reasoned that this variability neither necessarily
disqualifies the Act nor does it make it so “vague” or “amorphous” thamt -i
plementation would “strain judicial competence.” 77
Finally, the court found that theAct explicitly dictated that the state
“shall make” foster care maintenance paymentsand, therefore, creates a duty
for the states to make payments to qualified applicants.78 Meanwhile, the state
of Kentucky argued that Congress did not intend the Act to be binding on the
states.79 Rather, the state argued that the Actprovided as a list of things that
could be completed if the state wanted to be reimbursed by the federal vg-o
ernment.80 The state argued that nothing wasactually required of it, as it
could chose to forego the conditionsset out in the Actand take on the full
cost of the payments themselves.81 The court ultimately gave little weight to
the state’s arguments because the Act explicitly explains in mandatory terms
that a state “shall make foster care maintenance payments;” thus, the Act
cannot be interpreted as merely a roadmap.82 As a result, the court concluded that
these payments are not voluntary; they are required.83
The Sixth Circuit ultimately determined that the Act satisfies the three
main requirements for an act to embody a privately enforceable right.84
77 42 U.S.C. § 675(4)(A); Glisson, 847 F.3d at 378–79; see also Wilder, 496 U.S. at 519
(inferring that because thestatute does not specify the specific amounts to be spent on each item,
those decisions are left to the discretion of the foster family).
78 See Glisson, 847 F.3d at 378–79 (reasoning that Congress used“rights creating language”
and bound the state to an obligation to provide “thfoester maintenance payments”); see also
Blessing, 520 U.S. at 338 (finding that a statute creates a“binding obligation” if it describes what
a state must do to obtain federal funding).
79 Glisson, 847 F.3d at 3787–9. Although Kentucky makes this argument, they provide no
support for it, and it is unlikely that any state has attempted to fund the foster care maintenance
payments on their own.Id. See Midwest Foster Care& Adoption Ass’n v. Kincade, 712 F.3d
1190, 1198 (8th Cir. 2013) (finding that 42 U.S.C. § 672(a) provides limitations for what types of
foster care payments would be matched with federal funding but does not require that states make
the payments to foster families).
80 Glisson, 847 F.3d at 379. Kentucky further argues that the Act was meant to serve as a
“roadmap” if the states wanted to be reimbursed with federal moniesI.d.; see 42 U.S.C. § 672(a)(1)
(detailing the process in which the state can be reimbursed for making foster care maintenance yp-a
ments to foster families).
81 Glisson, 847 F.3d at 379.
84 Id. at 380; see Wilder, 496 U.S. at 514 (holding that because the Boren Amendment sast-i
fies all three requirements, the act embodies a privately enforceable rights)e;e also Cal. State
Foster Parent Ass’n v. Wagner, 624 F.3d 974, 982 (9th Cir. 2010)
(holding that the Act is ai-pr
vately enforceable right because it satisfies the three factors ofthe Blessing test, but not ruling on
§ 1983 enforceability because the state did not rebut the presumption)
B. The Rebuttable Presumption: The Sixth Circuit and § 1983
There is a rebuttable presumption that the Act can be enforced using
§ 1983 because the Sixth Circuit found that it creates a pvriately
enforceable right.85 In Glisson, the Sixth Circuit held that the Act’s prescribed foster
care maintenance payments are enforceable using §1983.86 The court was
not persuaded by the state of Kentucky’s argument that the Secretary’s
review of the plan served as an independent enforcement mechanism and
adequately protected the rights of affected individuals.87 The state argued that
because the Secretary can review the plan, the case is analogous to Gonzaga
University v. Doe, in which the Secretary of Education was “expressly
authorized” to mediate FERPA abuse88s. In Gonzaga, the Supreme Court
found that the specificprovision within FERPA did not create a privately
enforceable right; therefore, it could not be enforced under 1§983.89 The
Sixth Circuit distinguished the facts in Glisson from the facts in Gonzaga in
its determination that the Act created a private right to foster maintenance
payments, whereas FERPA did not create any such private right.90
In Glisson, the Sixth Circuit decided that the oversight given to the
Secretary is not elaborate enough to showthat Congress intended to
foreclose § 1983 enforceability.91 Thus, the Act’s enforcement mechanisms,
characterized by the court as weak, do not foreclose § 1983 enforceability.92
C. The Eighth Circuit and the Unavailability of § 1983 as an Enforcement Mechanism
In Midwest Foster Care and Adoption Ass’n v. Kincade, the Eighth
Circuit found that the Act was not “unambiguously” meant to benefit the
plaintiff, failing the first factorof the test set forth inBlessing v.
Free85 Glisson, 847 F.3d at 380 (quoting Blessing, 520 U.S. at 341).
86 See id. at 381
(reasoning that because there is neither evidence of congressional intent to
foreclose § 1983 enforcement implicitly by creating aseparate enforcement mechanism nor
explicitly by stating that§ 1983 cannot be used to enforce the Act, the Act can be enforced using
88 Compare id. at 380 (the Secretary has the power to “withhold funds to ncoonm-plying
States”), with Gonzaga Univ. v. Doe,536 U.S. 273, 289 (2002) (the Secretary of Educationwas
“expressly authorized” to oversee FERPA abuses).
89 Gonzaga, 536 U.S. at 290–91.
90 See id. (finding that because FERPA’s enforcement procedures and federal review
proecdures are sufficient, there is no private right to be enforced).
91 Glisson, 847 F.3d at 380.
92 See id. (explaining that the Secretary simply “reviews” the plan created by the state and is
not given any actual authority to force the state to give foster care maintenance payments to foster
care families and, therefore, the statute does not have any sort of enforcement mechanism).
stone.93 The Eighth
Circuit found that because the Act does not contain
what it considered to beany “rights-creating language,” the Actcould not
be deemed to provide a privately enforceable right.94 First, the court noted
that the language present in the Act focuses on the state, wichh is the
subject being regulated.95 The court likened the statute to FERPA inGonzaga,
which was considered “two steps removed from the interests of [the]
inidvidual.”96 The court reasoned that the Act outlines the limitations on states
and the types of spendingthat will be reimbursed with federal money,
providing very little direct language about the interests of the foster clh-i
The Eighth Circuit concluded that the definition oosfter “fcare
maintenance payments,” which lists whatfunds can be used for, does not
necessarily create a privately enforceable righ9t8. Rather, the list found in
§ 675(4)(A) of the Act serves as a “ceilingt”hrough which Congress
intended to limit state reimbursements.99 Additionally, § 672(a)(1) states the
conditions that must bemet prior to initiating the need for foster
mainetnance payments.100 Additionally, the court found that the Act has an
“aggregate” focus, as the statute links the provision of federal funding to
“substantial compliance” by the state1.01 Moreover, each time an individual right is
stated, the court determined that the languageillustrates what actions
prohibit federal reimbursement, which further proves an aggregate focus1.02 In
the end, the Eighth Circuit determined that Congress did not
“unambiguous93 Kincade, 712 F.3d at 1203; see Blessing, 520 U.S. at 340 (holding that in order for a right
to be a privately enforceable right, the first factor that must be met is th“aCt ongress must have
intended that the provision in question benefit the plaintiff”).
94 Kincade, 712 F.3d at 1197.
95 Id.; see also Gonzaga, 536 U.S. at 287 (finding that statutes focused on the individual being
regulated, instead of the individual being benefitted, do not contain rights-creating language).
96 See Kincade, 712 F.3d at 1197 (holding that the focus of the Act is too“removed” from the
interests of the foster parents);see also Gonzaga, 536 U.S. at 287 (finding that where a statutes’
regulations are too “removed” from the interests of the person who benefits from the statute, the
statute does not create a privately enforceable right).
97 See Kincade, 712 F.3d at 1197–98 (finding that when a statute is focused on telling the
states what they must do to receive federal funding, that statute is unlikely ctroeate a privately
98 Id. at 1198.
99 42 U.S.C. § 675(4)(A); Kincade, 712 F.3d at 1197.
100 42 U.S.C. § 672(a)(1); see Kincade, 712 F.3d at 1198 (finding that the Agecnterally
serves as a “roadmap,” which a state can follow ifit wants its funds to be matchedby federal
money). If the state does not want to follow this roadmap, the state must provide these payments
on its own. Kincade, 712 F.3d at 1197.
101 42 U.S.C. 672(a); see Kincade, 712 F.3d at 1200–01 (stating that one factor that shows a
statute has an aggregate focus is when a statute is centered around “substantial compliance”).
102 See Kincade, 712 F.3d at 1201 (explaining that when the Supreme Court has found a
statute to create a privately enforceable right, these referenced statutes have not been “ensconced”
with language that “triggers . . . a funding prohibition”).
ly confer” a privately enforceable right of foster care maintenance payments,
and thus, the Act cannot be enforced under § 1983.103
Section A of this Part reiterates that the Child Welfare Act is not a
pirvately enforceable act and explains the reasoning1.04 Section B of this Part
explains that the Sixth Circuit’s ruling might have been based on policy
reasoning, rather than statutory interpretation.105 Section C concludes this Part
by arguing that the power to correct this problem rests with Congress.106
A. The Child Welfare Act is Not a Privately Enforceable Right
Though the Act was enacted to protect the foster care system and to
ensure foster care maintenance payments, the Act’s text does not denm-o
strate Congress’s “unambiguous intent” to create a privately enforceable
right.107 Understandably, this conclusion should invoke some emotion,
ebcause it means that an individual taking in afoster care child may be left
without legal recourse if they do norteceive the monetary help that they
need to get by.108 It is a fundamental rule that courts must follow the ep-r
scribed tests rather than legislate from the bench.109 Here, following the test
agreed upon by the Supreme Court in Blessing v. Freestone, it is clear that
the Act fails the first of the three factors because the verbiage included in
the Act does not show Congress’s unambiguous intent to benefit the plna-i
tiff.110 As the Eighth Circuit demonstrates, there is no “rights creating
language” apparent within the Act.111 Though ultimately foster children are the
beneficiaries of the Act, the contents of 42 U.S.C. § 672 are largely focused
on the “institution being regulated” and contain the layout of the conditions
that trigger the federal government’s reimburseme1n1t2. While the Sixth
Circuit reasoned that the Act is focused on the child becauseexitplicitly
states “on behalf of each child,” it ignored the express languaegin the
beginning of the Actdirected toward the states.113 In fact, the Act speaks
largely to the states,beginning, “[e]ach state with a plan approved under
this part”114 Thus, the language of the Act is not primarily focused on
individual foster parents, but instead focused instead on what states need to do
to be eligible for reimbursement by the federal government.115
Additionally, because the Act has an “aggregate focu”s,rather than an
individual focus, it cannot be said to create a privately enforceable right.116 As
illustrated in Gonzaga University v. Doe, proof of an aggregate focus can be
found if an act is determined not to be focused on if the “needs” of a specific
person were met and if the text ofthe Act “triggers” the prevention of
repayment.117 Assessing the Act through this lens, the majority of §672 is focused
on whether the state plan “substantially conforms” to the statute.118
111 See Kincade, 712 F.3d at 1197 (finding that because theAct focuses on the state as the
entity being regulated and not on the individual being benefited, the Act does not include any
“rights creating language”); see also Gonzaga, 536 U.S. at 287 (finding that the presence of rights
creating language in a statute is evidence that Congress intended the statute to benefit the
112 Gonzaga, 536 U.S. at 287–88; D.O. v. Beshear, No. 5:15-048-DCR, 2016 WL 1171532, at
(E.D. Ky. Mar. 23, 2016)
rev’d sub nom. D.O. v. Glisson, 847 F.3d 374, 37–576 (6th Cir.
113 Glisson, 847 F.3d at 378; see 42 U.S.C. § 672(a)(1) (“Each State with a plan approved
under this part . . . .”).
114 42 U.S.C. § 672(a)(1); see Kincade, 712 F.3d at 1198 (finding that theAct largely focuses
on what a state needs to do in order to be reimbursed and serves as a roadmap for states to follow).
115 See 42 U.S.C. § 675(4)(a) (detailing the list of items and services thactan be paid for by
the state and reimbursed by the federal government);Kincade, 712 F.3d at 1198 (finding that the
Act simply sets out what states can bereimbursed for and the process by which reimbursement
116 See Kincade, 712 F.3d at 1200 (finding that the Act creates a link between compliance
with conditions and reimbursement and, therefore, has an aggregate focus); see also Gonzaga, 536
U.S. at 288 (finding that a statute with an“aggregate focus” cannot create a privately enforceable
117 See Gonzaga, 536 U.S. at 288–89 (further detailing that a statute with an “aggregateo-f
cus” does not “give rise to individual rights); Blessing, 520 U.S. at 344 (finding that if there is not
“substantial compliance” of Title IV-D, the Secretary cannot force the states to comply, bunt- i
stead this merely is a “trigger” that allows the Secretary to decrease the amounotf money repaid
to the state).
118 42 U.S.C. § 672; Kincade, 712 F.3d at 1198.
B. What About the Sixth Circuit’s Ruling?
The text of the Act appears to not create a privately enforceable right,
yet the Sixth Circuit found it did, allowing forprivately enforcement under
§ 1983.119 One potential factor in the Sixth Circuit’s analysiiss that if the
Act is not a privately enforceable right, then there is no way to ensure that
states follow proper procedures or that foster parents are given the money
needed to support their children1.20 The Act does not provideindependent
private enforcement, and without § 1983, it is not clear how a harmed
individual could seek assistance.121 For instance, if an individual took in a foster
child anticipating reliance on the foster care maintenance payments, but
then did not receive those payments, that situation could have a
substantially negative effect on the welfare of the child.122 Congress likely intended for
the foster care maintenance payments tionclude a privately enforceable
right, as the welfare of this nation’s children has been and will continue to
be an important issue. 123 Without foster care maintenance payments, foster
parents may be less likely to take in foster children simply because they do
not have the funds to provide for them1.24 Although Congress’s intent may
have been to create a privately enforceable right, the text of the Act does not
unambiguously express any such intent to create a privately enforceable
right as required by the Blessing test. 125
C. The Solution Lies with Congress
Congress should amend the Act to demonstrate a clear commitmentto
the safety and welfare of the nation’s children by creating a privately
enforceable right.126 This issue should not be left to the courts, as presently
thepapropriate interpretation leaves individuals no recour1s2e7. Congress should
resolve the ambiguities by either molding the Act into a statute thatsatisfies
the Blessing test or by detailing an independent private enforcement
mechanism by which foster care parents can ensure their right to foster care
maintenance payments.128 Thereafter, courts can find this right is privately
enforceable under §1983, or an independent private enforcement mechanism would
allow individuals, such as the aunt inD.O. v. Glisson, who have had foster
care payments wrongfully withheld to receive justice.129
When the Sixth Circuit determined that the Act was a privatelyn- e
forceable right, enforceable using §1983, it is possible the
courtcompromised its analysis to justify the end result. Despite ambiguous text, the court
concluded that foster care maintenance payments comprisea private right,
enforceable using § 1983. Assessing the same Ac,t the Eight Circuit held
that foster care maintenance payments did not comprise a privately
enforceable right and, thus, cannot be enforced using § 1983. Although the result of
the Eighth Circuit’s decision is detrimental to foster parents and seemingly
not in line with Congressional and national sentimentsbecause foster
parents may not have judicial remedies for states improperly withholding
payments, the analysis correctly applies theBlessing factors for determining
what is an individual right. The Eighth Circuiatppropriately captured the
role of courts to interpret the law, rather than supersede legislative authority.
Because there is no way for the courts to circumvent Congress and find that
the Act does create a privately enforceable right, Congress should amend
the Act to ensure thatthe verbiage shows Congressional intentto create a
privately enforceable right. This can bedone by including language that
“benefits the plaintiff,” making the Act not so “vague and amorphous that
126 42 U.S.C. § 672. See generally Peabody, supra note 103 (explaining that Judges should
not legislate from the bench, rather it is Congress’s job to pass necessary legislation).
127 See Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’4n5,3 U.S. 1, 13–14
(1981) (finding an elaborate enforcement mechanism to force compliance with the FWCPA).
Here, § 672 contains no such enforcement mechanism; therefore, without the ability to enforce
this right using § 1983, there is no way to ensure that states will comply and give the necessary
funds to the foster parents. 42 U.S.C. § 672.
128 See Glisson, 847 F.3d at 381
(finding that the Act can be enforced using§ 1983 because
using the factors set out inBlessing, the Act creates a privately enforceable right)
(finding that the Act cannot be enforced using§ 1983 because the Act fails the first factor of
the Blessing test)
129 See Glisson, 847 F.3d at 380–81
(explaining that the Act provides no review mechanisms
and, thus, the only way that a foster family who has been withheld foster maintenance payments
can challenge the state’s action is through the use of § 1983)
its enforcement would strain judicial competence,” and clearly stating that it
is mandatory for states to pay the foster maintenance payments. Once these
three factors are clear in the statute, indiviudals will be able to sue to
enforce their right to foster maintenance payments.
60 See id . (reasoning that because the children were placed in the permanent care of their aunt, the boys were no longer within the definition of “foster children,” and the issue was moot).
61 See id . (arguing further that the state'sfailure to make these payments violated the Consittution's Equal Protection and Due Process Clauses).
62 See id . at 377 ( finding that if there is no privately enforceable right, an individual cannot bring a § 1983 enforceability suit ).
63 42 U.S.C. § 672(a)(1) ( 2012 ) ; see D.O. v . Beshear, No. 5 : 15 - 048 -DCR, 2016 WL 1171532, at *5 ( E.D. Ky . Mar. 23 , 2016 ), rev'd sub nom . D.O. v. Glisson, 847 F.3d 374 , 375 - 76 ( 6th Cir . 2017 ), cert. denied 138 S. Ct . 316 ( 2017 ) (finding that the children are the intendedbeneficiaries of the Act, but the Act itself is not termed in a way that focuses on the individual beneficiary ).
64 D.O. v. Beshear , 2016 WL 1171532, at *5.
65 See Blessing v. Freestone , 520 U.S. 329 , 340 - 41 ( 1997 ) (detailing that a right is privately enforceable if Congress designed the statute to benefit the plaintiff, the right is not so “vague and amorphous that its enforcement would strain judicial competence,” and the statute creates a “binding obligation” for the state)s; D.O. v . Beshear, 2016 WL 1171532, at *6 (holding that the first factor of the Blessing test is not satisfied and the Act does not create a privately enforceable right).
66 Glisson, 847 F. 3d at 376. III. THE FUTURE OF THE ACT AND § 1983 ENFORCEABILITY
103 Id. at 1203.
104 See infra notes 107-118 and accompanying text.
105 See infra notes 119-125 and accompanying text.
106 See infra notes 126-129 and accompanying text.
107 42 U.S.C. § 672 (a) ( 2012 ) ; see Midwest Foster Care & Adoption Ass'n v . Kincade , 712 F.3d 1190 , 1203 ( 8th Cir . 2013 ) (holding that there is no proof to show thatCongress did “unambiguously confer” a privately enforceable right).
108 Kincade, 712 F.3d at 1203.
109 See United States v . Virginia , 518 U.S. 515 , 568 , 570 ( 1996 ) (Scalia, J., dissenting) (explaining that the role of the court is to “preserve society's values” and not to “revise” society's values). Furthermore, courts cannot create tests to change the laws; they must only “evaluate” statutes. See generally Bruce G. Peabody, Legislating from the Bench: A Definition and a Defense, 11 LEWIS & CLARK L. REV . 185 ( 2007 ) (discussing the critiques of “legislating from the bench”).
110 See Kincade , 712 F.3d at 1202 (citingGonzaga Univ. v. Do,e 536 U.S. 273 , 29 - 091 ( 2002 )) (finding that the Act does not satisfy the first factor of theBlessing test); see also Blessing v . Freestone , 520 U.S. 329 , 340 ( 1997 ) (explaining that an act is a privately enforceable right if Congress intended to benefit the plaintiff, the right being conveyed is clear and not “so vague and amorphous that its enforcement would strain judicial competenec,” and the right creates a “binding obligation” for the states ).
119 Gonzaga, 536 U.S. at 288-89; Blessing, 520 U.S. at 244; Glisson, 847 F.3d at 381.
120 Glisson, 847 F.3d at 381; see Blessing, 520 U.S. at 340 ( finding that § 1983 enforceability is only available to enforce a privately enforceable right, not merely a federal law) . It has been found that 20% of children in foster care live in poverty, meaning that the foster families that they live with are below the poverty line . Jessica Pac et al., Poverty Among Foster Children: Estimates Using the Supplemental Poverty Measure, 91 SOC. SERV. REV. 8 , 22 ( 2017 ).
121 Glisson, 847 F.3d at 38;1see 42 U.S.C. § 672(a)(1) (stating that the Secretary has the ability to review the foster care maintenance plan, but there is no “elaboratenforcement mechanism” provided in the statute ).
122 42 U.S.C. § 672(a)(1); Glisson, 847 F .3d at 381. Foster care children most often come from poor neighborhoods, singlef-amily homes, and have had exposure to things such as substance abuse and instability . Pac, supra note 114, at 9-10.
123 HOUSE WAYS & MEANS COMM ., supra note 14 . Given Congress's commitment to the welfare of our nations' children, it seems likely that they would want individuals to be able to enforce the Act . Id.
124 See Glisson , 847 F. 3d at 381 (finding there was no federal mechanism for enforcement present within the Act and thawtithout § 1983 enforcement, foster parents may not be able to afford taking foster children in).
125 See Kincade , 712 F. 3d at 1202 (the Act fails the Blessing test largely because there was no “clear and unambiguous” congressional intent to create a privately enforceable right) . Preferred Cite: Hannah Dudley, Comment, A Case for Revisiting the Child Welfare Act , 57 B.C. L. REV . E. SUPP. 444 ( 2018 ), http://lawdigitalcommons.bc.edu/bclr/vol59/iss9/444/.