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NEAL v. CASEY

April 12, 1993

BABY NEAL, et al., Plaintiffs,
v.
ROBERT P. CASEY, et al., Defendants.



The opinion of the court was delivered by: BY THE COURT; ROBERT F. KELLY

 R.F. KELLY, J. APRIL 12, 1993

 This is a civil rights action brought on behalf of children in Philadelphia who have been placed in the custody of the Philadelphia Department of Human Services ("DHS") alleging that Defendants by their actions or inactions have denied Plaintiffs their rights by refusing to conform their activities to the requirements of federal law, the United States Constitution, and state law and regulations. Plaintiffs are in the custody of DHS because their parents are unable to care for them or because of allegations that they have been abused or neglected. This case was brought on behalf of the named Plaintiffs through their Next Friends. The Commonwealth and City Defendants and Defendant Judge Edward J. Bradley have filed a Motion for Summary Judgment in this action. For the reasons set forth below, Defendants' Motion for Summary Judgment is granted in part and denied in part.

 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). This Court is required to view the record in the light most favorable to the party opposing the motion for summary judgment. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). All justifiable inferences must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party is entitled to summary judgment where no reasonable resolution of conflicting evidence and inferences therefrom could result in a judgment for the non-moving party. Bank of Am. Nat'l Trust and Sav. Ass'n v. Hotel Rittenhouse Assoc., 595 F. Supp. 800, 802 (E.D. Pa. 1986) (citations omitted).

 Defendants have asserted numerous grounds upon which summary judgment should be granted. This Court will address each of these arguments separately.

 
I. PLAINTIFFS' CLAIMS UNDER THE ADOPTION ASSISTANCE AND CHILD WELFARE ACT:

 Recently, in Suter v. Artist M., 118 L. Ed. 2d 1, 112 S. Ct. 1360 (1992), the Supreme Court of the United States addressed the issue of whether private individuals have the right to enforce by suit a provision of the Adoption Act either under the Act itself or through an action under 42 U.S.C. § 1983. The district court and the Court of Appeals for the Seventh Circuit held that 42 U.S.C. § 671(a)(15) contained an implied right of action which could also be enforced under 42 U.S.C. § 1983. The Supreme Court reversed and held that § 671(a)(15) of the Adoption Act does not confer an enforceable right on behalf of its beneficiaries nor does it create an implied cause of action on the beneficiaries' behalf. 112 S. Ct. at 1370.

 Respondents in Suter filed their action seeking declaratory and injunctive relief under the Adoption Act. Respondents were a class of children who alleged that Illinois state officials responsible for the operation of foster care were failing to make the "reasonable efforts" as required under the Adoption Act. Section 671(a)(15) of the Adoption Act provides that:

 
(a) Requisite features of State plan
 
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)(15). Plaintiffs alleged that Defendants had failed to make reasonable efforts to prevent removal of children from their homes and to facilitate reunification of families where removal had occurred. The Court in Suter recognized that the Adoption Act is mandatory in its terms, however, it examined what precisely is required of states by the Adoption Act pursuant to Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981). Suter, 112 S. Ct. at 1367. The Suter Court determined that the only requirement under § 671(a) of the Adoption Act is that the state have a plan that is approved by the Secretary which contains the listed requirements. Id. Furthermore, Congress has not provided statutory guidance in § 671(a)(15) as to how "reasonable efforts" is to be measured. Id. at 1368. The Court stated that this is a "directive whose meaning will obviously vary with the circumstance of each individual case." Id. When it comes to compliance with the plan, states are given broad discretion. Moreover, the Court stated that other sections of the Adoption Act facilitate in enforcing the "reasonable efforts" clause. For instance, § 671(b) of the Adoption Act provides that the Secretary can reduce or eliminate reimbursement to a state if the state's plan no longer complies with § 671(a) or if there is a substantial failure in the administration of the plan such that the state is not complying with its plan. 112 S. Ct. at 1368.

 The Court in Suter found that the "reasonable efforts" language, examined in the context of the entire Adoption Act:

 
does not unambiguously confer an enforceable right upon the Act's beneficiaries. The term 'reasonable efforts' in this context is at least as plausibly read to impose only a rather generalized duty on the State, to be enforced not by private individuals, but by the Secretary in the manner previously discussed.

 Id. at 1370. The Court held that § 671(a)(15) of the Adoption Act does not create a right to enforce this provision under 42 U.S.C. § 1983 nor does it contain an implied right of action for private enforcement. Id.

 Respondents in Suter further argued that under 42 U.S.C. § 1983 they could sue to obtain enforcement of § 671(a)(3) of the Adoption Act. Id. at 1368. Section 671(a)(3) of the Adoption Act provides that: "the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them." 42 U.S.C. § 671(a)(3). The Court found that the language "in effect" is "directed to the requirement that the plan apply to all political subdivisions of the State, and is not intended to otherwise modify the word 'plan.'" Suter, 112 S. Ct. at 1368. Moreover, the Court went on to state that Plaintiffs' claim for relief based upon § 671(a)(9) of the Adoption Act fails to sustain a cause of action. Id. n.10. Section 671(a)(9) of the Adoption Act states that the state plan shall provide that the state agency report to the appropriate official or agency any known or suspected instances of abuse, neglect, or exploitation of a child receiving aid. See 42 U.S.C. § 671(a)(9). The Court stated that this subsection is "merely another feature which the state plan must include to be approved by the Secretary . . . ." 112 S. Ct. at 1368 n.10.

 In the present case, Plaintiffs argue that Defendants are violating their rights under the Adoption Act by failing to provide them with: (1) an information system that conforms to statutory requirements; (2) written case plans that contain mandated elements, periodic reviews and dispositional hearings; (3) a permanent placement program; (4) a preplacement preventive service program; (5) proper care and placement in the least restrictive (most family-like) setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child; (6) foster care placements that conform to nationally accepted standards; and (7) reasonable efforts to prevent their removal from their biological parents or to enable them to return to those parents. These claims are asserted under §§ 627(a)(2)(A), (B), and (C), 627(b)(3), 671(a)(10) and 671(a)(15) of the Adoption Act. Plaintiffs do not contest the dismissal of their claims under § 671(a)(15) of the Adoption Act based upon the Suter decision. However, Plaintiffs maintain that their remaining claims under the Adoption Act are still viable since these subsections were not specifically addressed by the Court in Suter.

 Section 671(a)(10) of the Adoption Act provides that:

 
(a) 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 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.

 42 U.S.C. § 671(a)(10). Plaintiffs contend that under this section they have an enforceable right to placement in foster homes or other child care institutions which conform to national standards. Plaintiffs claim that § 671(a)(10) of the Adoption Act is sufficiently clear and unambiguous to create a private right of action since it refers to "recommended standards of national organizations."

 This Court finds that § 671(a)(10) fails to unambiguously confer upon Plaintiffs a private right of enforcement under this provision. This section states that a state authority shall be designated which will be responsible for establishing and maintaining standards for foster family homes and child care institutions that must be "reasonably in accord with recommended standards of national organizations . . . ." 42 U.S.C. § 671(a)(10). The language of this section does not confer upon Plaintiffs a "right" to foster homes or institutions which are in accord with recommended standards of national organizations but clearly states that the state plan must provide for the designation of a state authority or authorities which shall establish and maintain such standards. Moreover, "reasonably in accord" is as vague and ambiguous as "reasonable efforts" under § 671(a)(15).

 Furthermore, this Court concludes that § 671(a)(10), like § 671(a)(15), is simply another component which the state plan must include in order to be approved by the Secretary to receive federal funding. The Supreme Court's reasoning in Suter applies equally to this subsection of the Adoption Act. The Suter Court examined two other subsections of § 671(a). The respondents asserted claims under § 671(a)(3) and (9) of the Adoption Act along with § 671(a)(15). The Court found that these subsections, like § 671(a)(15), did not create a private right of enforcement by the Act's beneficiaries and were merely another feature which the state plan must include for approval. See 112 S. Ct. at 1367-68, n.10. The language of Suter is clear. Plaintiffs may not bring an action under the Adoption Act itself or 42 U.S.C. § 1983 for alleged failures of the Commonwealth to implement any feature of its plan which has been approved by the Secretary. The Supreme Court stated that:

 
The Act does place a requirement on the States, but that requirement only goes so far as to ensure that the State have a plan approved by the Secretary which contains the 16 listed features.

 Id. at 1367. The Court further stated that:

 
The regulations promulgated by the Secretary to enforce the Adoption Act do not evidence a view that § 671(a) places any requirement for state receipt of federal funds other than the requirement that the State submit a plan to be approved by the Secretary.

 Id. at 1369.

 Plaintiffs further maintain that Defendants are violating §§ 627(b)(3) and 627(a)(2)(A), (B) and (C) of the Adoption Act. Sections 627 and 671 are both part of a funding scheme by which Congress provides funds to a state to assist such state's child welfare programs. The Adoption Act comprises parts IV-B and IV-E of the Social Security Act. Part IV-B, 42 U.S.C. §§ 620-628, contains the program through which Congress provides funds to states to assist them in developing a broad range of child welfare services some of which are directed at children in foster care. Part IV-E, 42 U.S.C. §§ 670-679, contains the program through which Congress provides funds to reimburse states for child-specific foster care and adoption expenses which have been incurred.

 Plaintiffs claim that §§ 627(a)(2)(A), (B) and (C) and 627(b)(3) are binding on the Commonwealth because it receives the requisite federal funding. Defendants argue that, except with respect to the amount of funding, there is no significant difference between the language of Part IV-B, which contains § 627, and Part IV-E, which contains § 671. Defendants state that each Part simply provides that a state must have in place certain programs and procedures in order to receive federal funding.

 Section 627(b)(3) provides that a state's funding amount will be reduced to a certain level unless such state:

 
has implemented a preplacement preventive service program designed to help children remain with their families.

 42 U.S.C. § 627(b)(3). Section 627(a)(2) requires that in order for a state to qualify to receive funding above a specified level, such state must:

 
have implemented and is operating to the satisfaction of the Secretary --
 
(A) a statewide information system from which the status, demographic characteristics, location, and goals for the placement of every child in foster care or who has been in such care within the preceding twelve months can readily be determined;
 
(B) a case review system (as defined in section 675(5) of this title) for each child receiving foster care under the supervision of the State; and
 
(C) a service program designed to help children, where appropriate, return to families from which they have been removed or be placed for adoption or legal guardianship.

 Upon examination of the language of the various subsections of § 671 and § 627, these subsections are extremely similar. Section 627(a)(2)(B) provides that in order to receive various funds, a state must have implemented and operating a case review system as defined in § 675(5). Section 671(a)(16) provides that a state must have a plan which provides for a case review system as defined in § 675(5). Moreover, § 671(a)(15) requires a state plan to provide that reasonable efforts will be made to prevent removal of children from their homes or to return the children to their homes. In comparison, § 627(b)(3) also requires a program to prevent removal of children from their homes. Section 627(a)(2)(C) also requires a program designed to help children "return to families from which they have been removed or be placed for adoption or legal guardianship." These three sections provide for programs and/or efforts to ensure that children remain in their homes or return to their homes where appropriate. *fn1"

 The main difference between these sections is the amount of federal funding available to a state. As discussed in Suter, if a state is not complying with its state plan, then the Secretary can reduce or eliminate reimbursement under § 671(b). Under § 627, if a state does not have implemented and operating to the "satisfaction of the Secretary" the various programs and systems as required under §§ 627(b)(3) and 627(a)(2)(A), (B) and (C), then the state will not receive the higher level of funding under those sections. Interestingly, the title of § 627 is "Foster care protection required for additional payments."

 This Court concludes that the language of §§ 627(b)(3) and 627(a)(2)(A), (B) and (C) does not unambiguously confer an enforceable right on behalf of its beneficiaries under 42 U.S.C. § 1983 nor create an implied cause of action for private enforcement. To hold otherwise would be in contradiction of the reasoning applied by the Supreme Court in Suter. These sections examined in the context of the entire Adoption Act clearly do not grant individuals a private right of enforcement. Accordingly, Defendants are entitled to summary judgment on all Plaintiffs' claims under the Adoption Act. Therefore, summary ...


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