Who Can Sue? the Sixth Circuit in D.o. v. Glisson Deepens the Split Over a Private Right of Action to Foster Care Maintenance Payments

JurisdictionUnited States,Federal
CitationVol. 51
Publication year2022




In D.O. v. Glisson,(fn1) the United States Court of Appeals for the Sixth Circuit determined that the Federal Adoption Assistance and Child Welfare Act of 1980(fn2) ("FAACWA") conferred a private right of action to eligible foster families and organizations for foster care maintenance payments on behalf of the children in their care.(fn3) In granting this action brought by a foster family, the Sixth Circuit aligned with the United States Court of Appeals for the Ninth Circuit in recognizing congressional intent to establish a private right of action for the eligible recipients of foster care maintenance payments under the FAACWA.(fn4)

The opinion in D.O. runs counter to Midwest Foster Care & Adoption Association v. Kincade,(fn5) where the United States Court of Appeals for the Eighth Circuit denied a private right of action to foster care providers seeking increased payments.(fn6) Before the Sixth Circuit's decision in D.O., jurisdictions have issued differing opinions regarding whether the FAACWA confers a private right of action to foster families for maintenance payments.(fn7)

When the United States Supreme Court first applied the enforcement statute of the Civil Rights Act of 1871(fn8) (" § 1983") to laws passed by Congress, the Court expanded private rights of action beyond the provisions of the Fourteenth Amendment of the United States Constitution.(fn9) Subsequent § 1983 actions led to the development of a three-pronged test, explained in Blessing v. Freestone,(fn10) to determine which statutes confer private rights of action to individual plaintiffs.(fn11) The Supreme Court attempted to clarify the Blessing test in Gonzaga University v. Doe,(fn12) specifying that § 1983 actions are appropriate only to enforce rights and not simply benefits or interests.(fn13)

This Note will first review the facts and holding of D.0.(fn14) Next, the Note will provide background from Supreme Court cases addressing an individual's private right of action under the Spending Clause,(fn15) and the alternative approach to foster care maintenance payments adopted by the Eighth Circuit in Midwest Foster Care.(fn16) This Note will demonstrate that Congress is unambiguous when it establishes privately enforceable rights under § 1983.(fn17) Then, this Note will assert that, after properly weighing the Gonzaga factors, the foster care maintenance payment sections of the FAACWA do not indicate congressional intent to establish a private right of action for foster care providers.(fn18) Finally, this Note will conclude that because the congressional intent of the FAACWA is not clear under the standards set by Gonzaga, the Sixth Circuit erred in granting a private right of action to D.O. and his family.(fn19)


In D.O. v. Glisson,(fn20) the United States Court of Appeals for the Sixth Circuit reversed the United States District Court for the Eastern District of Kentucky's determination that a foster parent related to the foster child did not have a private right of action under the FAACWA.(fn21) In 2012, a Kentucky woman, R.O., sought custody of her nephews, D.O. and A.O., who were placed in foster care due to neglect by their mother.(fn22) After R.O. passed the standard home evaluation and the children were placed in her home, the family court granted joint custody to the mother and R.O., but did not issue a court order discharging the boys from foster care.(fn23) While the children continued to live with the aunt, R.O. filed a motion in family court seeking foster care maintenance payments under the FAACWA.(fn24) The family court did not rule on the maintenance payments because it determined that permanent resolution had been achieved when it granted R.O. joint custody.(fn25) R.O., on behalf of D.O. and A.O., then filed suit under § 1983 in Fayette Circuit Court against the Secretary for the Kentucky Cabinet for Health and Family Services ("Kentucky").(fn26) The complaint asserted that foster care maintenance payments are mandated by the FAACWA, and also that Kentucky's refusal to make the payments violated the Equal Protection and Due Process clauses of the United States Constitution.(fn27) Kentucky removed the case to federal district court and argued the child maintenance payment law did not grant foster families a right to enforce the statute.(fn28) The district court granted Kentucky's motion for summary judgment, agreeing that the FAACWA provided no privately enforceable right.(fn29) The district court also dismissed the Due Process and Equal Protection claims, identifying no property right to the payments and also finding a rational basis for Kentucky to have different rules for foster care provided by a child's relatives and foster care provided by nonrelatives.(fn30)

The family appealed, asserting a private right of action to foster care maintenance payments.(fn31) D.O. argued the family deserved ongoing payments because Kentucky approved his aunt to provide foster care and did not explicitly discharge the boys from Kentucky's custody.(fn32) The Sixth Circuit reviewed the motion for summary judgment and concluded that the FAACWA confers upon foster families a private right to foster care maintenance payments.(fn33) The appellate court reversed the district court's decision and remanded the case to the district court to determine whether the children were still under Kentucky's responsibility in these circumstances.(fn34) In reversing the district court, the Sixth Circuit identified three provisions of the FAACWA relevant to its review of foster care maintenance payments.(fn35) First, the Sixth Circuit cited a provision of the FAACWA requiring states to submit a plan that satisfies thirty-five criteria in order to be eligible for federal funding.(fn36) The second relevant provision of the statute specifies foster care maintenance payments shall be made on behalf of each child removed from the home of a relative.(fn37) Finally, the Sixth Circuit reviewed the provision of the law allowing states to seek partial reimbursement from the federal government for foster care maintenance payments.(fn38)

Citing the United States Supreme Court's decision in Blessing v. Freestone,(fn39) the Sixth Circuit structured its reasoning around the three prongs of the Blessing test to determine when a statute confers an individually enforceable right: (1) whether Congress intended the plaintiff to benefit from this statutory provision; (2) whether judicial competence would be strained because of a vague or amorphous asserted right; and (3) whether a mandatory obligation upon the states is imposed by the provision.(fn40) The Sixth Circuit noted that when a plaintiff demonstrates that a statute creates a private right, a rebuttable presumption is established that it is enforceable under § 1983.(fn41)

In D.O., the Sixth Circuit applied the three-prong Blessing test and concluded that the FAACWA requires individual payments and focuses on particular children's needs because the FAACWA gives qualified foster families an entitlement to compensation, includes a list of expenses covered by the state, and mandates a state obligation to make the foster care maintenance payments.(fn42) The Sixth Circuit contrasted D.O. with Gonzaga University v. Doe,(fn43) where the United States Supreme Court ruled that the Family Educational Rights and Privacy Act of 1974(fn44) ("FERPA") did not grant private right of action to individual students.(fn45) The nondisclosure provisions of FERPA, the Sixth Circuit noted, speak exclusively to the Secretary of Education and have an aggregate focus on institutional policy or practice.(fn46) In contrast to Gonzaga, the Sixth Circuit asserted that the foster care maintenance payments mandated by the FAACWA focus on individual recipients, and thus confer a private right of action.(fn47) The Sixth Circuit also reasoned that the foster care maintenance payment provisions met the second Blessing prong since they were neither vague nor did the law strain judicial competence.(fn48) Finally, the Sixth Circuit determined that the third Blessing prong was met because the language mandated a binding obligation on the states.(fn49)

The Sixth Circuit disagreed with the United States Court of Appeals for the Eighth Circuit's reasoning in Midwest Foster Care & Adoption Ass'n v. Kincade,(fn50) where the Eighth Circuit identified the FAACWA as a roadmap of requirements to receive federal matching funds rather than a private enforceable right for eligible recipients.(fn51) The Sixth Circuit, instead, reasoned that once the Secretary approves a proposed plan, the State is required to make the payments.(fn52) Further, the Sixth Circuit noted that even though another section of the FAACWA requires partial federal reimbursement of foster care maintenance payments, the sections in question do not reference funding.(fn53) Kentucky contended that the FAACWA, rather than addressing the interests of foster families, spoke to the states as regulated participants.(fn54) The Sixth Circuit was not persuaded, however, determining that congressional intent to establish a private right was clear and that the FAACWA...

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