D.O. v. Vickie Glisson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0021p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

D.O.; A.O.; R.O., ┐

Plaintiffs-Appellants, │

│

> No. 16-5461

v. │

│

│

VICKIE YATES BROWN GLISSON, in her official │

capacity as Secretary for the Cabinet for Health and │

Family Services, │

Defendant-Appellee. ┘

Appeal from the United States District Court for

the Eastern District of Kentucky at Lexington.

No. 5:15-cv-00048—Danny C. Reeves, District Judge.

Argued: November 29, 2016

Decided and Filed: January 27, 2017

Before: DAUGHTREY, CLAY, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Richard F. Dawahare, MCCLELLAND & ASSOCIATES, PLLC, Lexington,

Kentucky, for Appellants. David Brent Irvin, CABINET FOR HEALTH AND FAMILY

SERVICES, Frankfort, Kentucky, for Appellee. ON BRIEF: Richard F. Dawahare,

MCCLELLAND & ASSOCIATES, PLLC, Lexington, Kentucky, for Appellants. David Brent

Irvin, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for

Appellee.

No. 16-5461 D.O., et al. v. Glisson Page 2

_________________

OPINION

_________________

COOK, Circuit Judge. The federal Child Welfare Act (“the Act”) specifies that “[e]ach

State with a plan approved under this part shall make foster care maintenance payments on

behalf of each child who has been removed from the home of a relative . . . into foster care.”

42 U.S.C. § 672(a). This appeal asks whether the Act creates a private right to foster-care

maintenance payments enforceable by a foster parent under 42 U.S.C. § 1983. We find that it

does, and therefore reverse the district court’s contrary decision.

I.

In 2012, Kentucky’s Health and Family Services commenced a Dependency, Neglect,

and Abuse proceeding against the mother of two young boys. The mother stipulated to

neglecting her children, and Kentucky placed both boys in foster care. Plaintiff R.O., the

mother’s aunt, sought custody of the children. The state “conducted a standard home evaluation

and criminal background check on R.O. and eventually both children were placed in her home by

Court Order.” In September 2014, the family court closed the action and granted joint custody to

both the mother and the aunt, though the boys remained living with the aunt.

R.O. filed a motion with the family court seeking foster care maintenance payments. The

court declined to rule on the issue, however, “indicating that permanency had been achieved.”

R.O. then sued the Secretary for Kentucky’s Cabinet for Health and Family Services (“the

Cabinet” or “Kentucky”) in state court, arguing that the federal Child Welfare Act required the

state to provide maintenance payments, and that the failure to make payments violated the

Constitution’s Equal Protection and Due Process Clauses. The Cabinet removed the case to

federal court and filed a motion to dismiss, or in the alternative, a motion for summary judgment.

The district court granted the Cabinet’s motion, reasoning that the Child Welfare Act provides no

privately enforceable rights, that the family lacked a property interest in the payments, and that

Kentucky’s scheme rationally distinguished between relative and non-relative foster care

providers. The family appealed.

No. 16-5461 D.O., et al. v. Glisson Page 3

II.

The court “review[s] a grant of summary judgment de novo, construing the evidence and

drawing all reasonable inferences in favor of the nonmoving party.” Hirsch v. CSX Transp., Inc.,

656 F.3d 359, 362 (6th Cir. 2011) (citing Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439,

443 (6th Cir. 2009)). “Summary judgment is appropriate where the movant demonstrates that

there is ‘no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Rocheleau v. Elder Living Constr., LLC, 814 F.3d 398, 400 (6th Cir. 2016)

(quoting Fed. R. Civ. P. 56(a)).

III.

In 1980, Congress passed the Child Welfare Act, also known as Title IV-E of the Social

Security Act. This federal-state grant program facilitates state-run foster care and adoption

assistance for children removed from low-income homes. See 42 U.S.C. § 670. Congress passed

the Act under its Spending Clause power, U.S. Const. art. I, § 8, and like other federal-state

cooperative programs, states are given the choice of complying with the Act’s conditions or

forgoing federal funding.

Three sections of the Act are relevant here. First, to be eligible for federal funds, a state

must submit a plan to the Secretary of Health and Human Services that satisfies thirty-five

specific criteria. 42 U.S.C. § 671(a). If a state’s plan fails to “substantial[ly] conform[]” to the

Act’s requirements, id. § 1320a-2a, the Secretary, after giving the state an opportunity to

implement a corrective action plan, must withhold federal money, id. § 1320a-2a(b)(3)(A),

(4)(A).

Second, the plan must “provide[] for foster care maintenance payments in accordance

with section 672.” Id. § 671(a)(1). Under § 672, “[e]ach State with a plan approved under this

part shall make foster care maintenance payments on behalf of each child who has been removed

from the home of a relative . . . into foster care.” Id. § 672(a)(1). Foster care maintenance

payments cover the cost of, among other things, the child’s food, clothing, and shelter. Id.

§ 675(4)(A).

No. 16-5461 D.O., et al. v. Glisson Page 4

Third, after the state remits maintenance payments to the foster family, it may seek partial

reimbursement from the federal government. Section 674(a)(1) provides that “each State which

has a plan approved under this part shall be entitled to a payment equal to the sum of” an

“amount equal to the Federal medical assistance percentage . . . of the total amount expended

during such quarter as foster care maintenance payments under section 672 of this title for

children in foster family homes or child-care institutions.”

IV.

We first address the central issues on appeal: 1) whether the Act confers upon foster

families a private right to foster care maintenance payments; and 2) whether that right is

enforceable under § 1983.

1. Private Right

Title 42 U.S.C. § 1983 imposes liability on anyone who, acting under color of state law,

deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.”

This section authorizes suits to enforce individual rights under federal statutes as well as the

Constitution. Maine v. Thiboutot, 448 U.S. 1, 4 (1980). Nonetheless, Ҥ 1983 does not provide

an avenue for relief every time a state actor violates a federal law.” City of Rancho Palos Verdes

v. Abrams, 544 U.S. 113, 119 (2005). Rather, “to sustain a § 1983 action, the plaintiff must

demonstrate that the federal statute creates an individually enforceable right in the class of

beneficiaries to which he belongs.” Id. at 120 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285

(2002)).

For this court to find an individually enforceable right: 1) “Congress must have intended

that the provision in question benefit the plaintiff”; 2) the asserted right must not be “so vague

and amorphous that its enforcement would strain judicial competence”; and 3) “the statute must

unambiguously impose a binding obligation on the States.” Blessing v. Freestone, 520 U.S. 329,

340–41 (1997) (internal citations and quotation marks omitted).

To illustrate, in Harris v. Olszewski, 442 F.3d 456 (6th Cir. 2006), we evaluated whether

Medicaid’s freedom-of-choice provision established enforceable rights. The provision reads:

No. 16-5461 D.O., et al. v. Glisson Page 5

“A State plan for medical assistance must . . . provide that [] any individual eligible for medical

assistance (including drugs) may obtain such assistance from any institution, agency, community

pharmacy, or person, qualified to perform the service or services required.” 42 U.S.C.

§ 1396a(a)(23). We held that the provision granted Medicaid-recipients an individually

enforceable right to choose their medical provider, reasoning that the phrase “any individual

eligible for medical assistance” evinced “the kind of individually focused terminology that

unambiguously confers an individual entitlement under the law.” Harris, 442 F.3d at 461

(internal citation and quotation marks omitted). We noted that “the mandate [] does not contain

the kind of vagueness that would push the limits of judicial enforcement.” Id. at 462. And we

explained that “the ‘must . . . provide’ language of the provision confirms that the statute is

‘couched in mandatory, rather than precatory, terms.’” Id. (omission in original) (quoting

Blessing, 520 U.S. at 341); see also Barry v. Lyon, 834 F.3d 706, 717 (6th Cir. 2016) (holding

that the federal Supplemental Nutrition Assistance Program—mandating that “[a]ssistance under

this program shall be furnished to all eligible households,” 7 U.S.C. § 2014(a)—created a

privately enforceable statutory right).

By contrast, in Gonzaga University the Supreme Court held that the Family Educational

Rights and Privacy Act (“FERPA”) failed to grant students a privacy right in their education

records. 536 U.S. at 290. The relevant statutory section provided:

No funds shall be made available under any applicable program to any

educational agency or institution which has a policy or practice of permitting the

release of education records (or personally identifiable information contained

therein . . .) of students without the written consent of their parents to any

individual, agency, or organization.

Id. at 279 (omission in original) (quoting 20 U.S.C. § 1232g(b)(1)). The Court reasoned in part

that FERPA lacked “the sort of ‘rights-creating’ language critical to showing the requisite

congressional intent to create new rights.” Id. at 287 (citing Alexander v. Sandoval, 532 U.S.

275, 288–89 (2001), and Cannon v. Univ. of Chi., 441 U.S. 677, 690 n.13 (1979)). In particular,

“FERPA’s provisions speak only to the Secretary of Education, directing that ‘no funds shall be

made available’ to any ‘educational agency or institution’ which has a prohibited ‘policy or

practice.’” Id. (quoting 20 U.S.C. § 1232g(b)(1)). The nondisclosure provisions evinced an

No. 16-5461 D.O., et al. v. Glisson Page 6

“aggregate focus” that “speak only in terms of institutional policy and practice, not individual

instances of disclosure,” and “are not concerned with ‘whether the needs of any particular person

have been satisfied.’” Id. at 288 (quoting Blessing, 520 U.S. at 343–44).

Applied here, we conclude the Act confers upon foster parents an individually

enforceable right to foster care maintenance payments. First, the Act mandates payments “on

behalf of each child.” 42 U.S.C. § 672(a)(1). This focus on individual recipients is similar to

language creating private rights in Harris and Barry. Unlike Gonzaga, the Act requires

individual payments and focuses on the needs of specific children, as opposed to merely

speaking to the state’s policy or practice. Second, the Act confers a monetary entitlement upon

qualified foster families and includes an itemized list of expenses that the state must cover.

42 U.S.C. § 675(4)(A). It therefore lacks vague and amorphous terms that might strain judicial

competence. Finally, § 672(a)(1)’s “shall make” language “unambiguously impose[s] a binding

obligation on the States.” Blessing, 520 U.S. at 341.

Kentucky makes several arguments to the contrary, though none are persuasive. It first

argues that § 672(a) simply sets out the preconditions that a state must satisfy to receive federal

reimbursement. In support, it points to a different statutory section, § 674(a)(1), which provides

that “each State which has a plan approved under this part shall be entitled to a payment equal to

the sum of” an “amount equal to the Federal medical assistance percentage . . . of the total

amount expended during such quarter as foster care maintenance payments under section 672 of

this title for children in foster family homes or child-care institutions.” 42 U.S.C. § 674(a)(1).

Based on this section, Kentucky invokes the Eighth Circuit’s reasoning that the “function of

§ 672(a) is to serve as a roadmap for the conditions a state must fulfill in order for its expenditure

to be eligible for federal matching funds; otherwise, the state bears the full cost of these

payments.” Midwest Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190, 1198 (8th Cir.

2013) (citing § 674(a)(1)).

We disagree. If § 672(a) simply provides a roadmap that states may choose to follow

to receive matching funds, then Congress would not have phrased the section in mandatory

terms. Indeed, once the Secretary approves the state’s plan, the state “shall make foster care

maintenance payments.” 42 U.S.C. § 672(a)(1) (emphasis added). It isn’t optional.

No. 16-5461 D.O., et al. v. Glisson Page 7

And although a separate section of the Act requires the federal government to partially reimburse

these costs, nothing in § 672(a) mentions funding.

Kentucky next contends that the Act “‘do[es] not speak directly to the interests’ of foster

parents; rather, [it] ‘speak[s] to the states as regulated participants in the [Act].’” Appellee Br.

36 (quoting Midwest Foster Care, 712 F.3d at 1197). Kentucky suggests that when Congress

writes in the active voice, making the state the subject, its focus is on the state as the regulated

entity, and courts should not infer a private right to whatever benefit the state is supposed to

provide. Thus, because Congress wrote in the active voice—“[e]ach State with a plan approved

under this part shall make foster care maintenance payments on behalf of each child,” 42 U.S.C.

§ 672(a)—Kentucky argues the law does not create a private right. Cf. New York State Citizens’

Coal. for Children v. Carrion, 31 F. Supp. 3d 512, 521 (E.D.N.Y. 2014) (“If the statute were

worded differently, and § 672(a)(1) read: ‘No eligible child shall be denied foster care

maintenance payments by a State with an approved plan,’ a reasonable reader might find the

requisite ‘rights-creating’ language.”).

Both the Supreme Court and the Sixth Circuit, however, have found that laws phrased in

the active voice, with the state as the subject, confer individually enforceable rights. See Wilder

v. Va. Hosp. Ass’n, 496 U.S. 498, 502–03, 509–10 (1990), superseded on other grounds by

statute; Harris, 442 F.3d at 461–62. This should not be surprising: Congress must not only use

rights-creating language, but also “unambiguously impose a binding obligation on the States.”

Blessing, 520 U.S. at 341. When Congress names the state as the subject, writes in the active

voice, and uses mandatory language, it leaves no doubt about the actor’s identity or what the law

requires.

Last, Kentucky argues that because the Act “does not dictate the amounts that States must

pay to foster parents,” it is not “sufficiently specific and definite to qualify as enforceable under

§ 1983.” But the Supreme Court in Wilder recognized a private right to a monetary benefit even

though the law granted states discretion to set the applicable rate.1 “That the [statute] gives the

1

The relevant provision of the Medicaid Act mandates that “a State plan for medical assistance must

provide for payment of the hospital services . . . through the use of rates . . . which the State finds . . . are reasonable

and adequate.” Wilder, 496 U.S. at 502–03 (internal alterations and citation omitted).

No. 16-5461 D.O., et al. v. Glisson Page 8

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.” Wilder, 496 U.S. at 519. And as the

Ninth Circuit explained when evaluating this provision, “[i]f a statute or applicable federal

requirement does not prescribe a particular methodology for calculating costs, we give deference

to a reasonable methodology employed by the State.” Cal. State Foster Parent Ass’n v. Wagner,

624 F.3d 974, 981 (9th Cir. 2010). Here, it is undisputed that Kentucky established foster care

maintenance payment rates. And neither party contends that Kentucky’s rate-setting

methodology is unreasonable.

Accordingly, § 672(a) confers an individually enforceable right to foster care

maintenance payments.

2. Enforcement Under § 1983

Once a plaintiff demonstrates that a statute creates a private right, “there is only a

rebuttable presumption that the right is enforceable under § 1983.” Abrams, 544 U.S. at 120

(quoting Blessing, 520 U.S. at 341). The state may rebut the “presumption by demonstrating that

Congress did not intend that remedy for a newly created right.” Id. (citing Blessing, 520 U.S. at

341, and Smith v. Robinson, 468 U.S. 992, 1012 (1984)). “[E]vidence of such congressional

intent may be found directly in the statute creating the right, or inferred from the statute’s

creation of a comprehensive enforcement scheme that is incompatible with individual

enforcement under § 1983.” Id. (internal quotations and citations omitted).

In Wilder, the Medicaid Act “authorize[d] the Secretary to withhold approval of plans,”

to “curtail federal funds to States whose plans are not in compliance,” as well as required States

to set up an administrative review system. 496 U.S. at 521–22. Notwithstanding these

procedures, the Court found that “the Secretary’s limited oversight” and “[t]he availability of

state administrative procedures . . . do[] not foreclose resort to § 1983.” Id. at 522–23.

Similarly, in Harris, we held that a plaintiff could sue under § 1983 because the Medicaid Act

“does not provide other methods for private enforcement of the Act in federal court.” 442 F.3d

at 462 (citations omitted). Further, we noted that the Secretary’s authority to “withhold funds to

No. 16-5461 D.O., et al. v. Glisson Page 9

non-complying States” and “the Act’s requirement that States grant an opportunity for a fair

hearing . . . [are not] inconsistent with a private action.” Id. at 463 (internal quotation marks and

citations omitted); see also Blessing, 520 U.S. at 348 (finding that Congress left open access to

§ 1983 because the statute “contains no private remedy . . . through which aggrieved persons can

seek redress,” and the Secretary could “audit only for ‘substantial compliance’ on a

programmatic basis”); Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 427–28

(1987) (same).

Here, the Act’s weak enforcement mechanisms fall short of foreclosing access to § 1983

remedies. Like in Wilder, Blessing, and Harris, the Secretary reviews the state’s plan only on a

program-wide basis, and lacks authority to ensure the state provides benefits to individual foster

parents. Indeed, a state could implement a plan that substantially conforms to the Act’s

requirements, yet neglect to pay foster parents in individual cases. Absent resort to § 1983,

foster families possess no federal mechanism to ensure compliance with the Act. And although

the Act requires states to provide for administrative review of denied claims, 42 U.S.C.

§ 671(a)(12), the “availability of state administrative procedures ordinarily does not foreclose

resort to § 1983.” Wilder, 496 U.S. at 523; see also Harris, 442 F.3d at 463.

Kentucky’s arguments to the contrary rely on the Supreme Court’s Gonzaga decision.

There, however, FERPA “expressly authorized the Secretary of Education to ‘deal with

violations’ of [FERPA],” and established a review board to adjudicate individual written

complaints. Gonzaga, 536 U.S. at 289 (quoting 20 U.S.C. § 1232g(f)). The Court found that

“[t]hese administrative procedures squarely distinguish this case from Wright and Wilder, where

an aggrieved individual lacked any federal review mechanism.” Id. at 289–90. Notably, the

Court inserted a footnote opining that it “need not determine whether FERPA’s procedures are

‘sufficiently comprehensive’ to offer an independent basis for precluding private enforcement,

due to our finding that FERPA creates no private right to enforce.” Id. at 290 n.8 (citation

omitted). In any event, the Child Welfare Act, unlike FERPA, includes no private federal review

mechanism that an aggrieved foster family can employ.

In sum, we hold that the Act confers foster families with an individual right to foster care

maintenance payments enforceable under § 1983.

No. 16-5461 D.O., et al. v. Glisson Page 10

V.

Having determined that the Act creates an individually enforceable statutory right, we

next evaluate whether the Plaintiffs are entitled to maintenance payments. Section 672(a)

restricts the class of children entitled to benefits in two relevant ways. First, the child must be in

the Cabinet’s custody; once the child is adopted or placed in a permanent guardianship, the Act

no longer requires maintenance payments. 42 U.S.C. § 672(a)(2)(B). Second, the child must be

placed in a licensed or approved “foster family home.” Id. § 672(a)(2)(C). The district court did

not address whether the children satisfy these qualifications because it found the Act failed to

create a private right. Plaintiffs contend that both conditions are met, and ask the court to order

the Cabinet to make payments. We address each criterion in turn.

1. State Custody

Section 672(a)(2)(B) requires the Cabinet to make maintenance payments only when “the

child’s placement and care are the responsibility of . . . the State agency administering the State

plan.” 42 U.S.C. § 672(a)(2)(B). Both parties agree that the Cabinet need only make payments

on behalf of children that are in its custody. Furthermore, there is no doubt that the Cabinet

obtained responsibility for the children when the family court removed them from their mother’s

home.

The issue is whether the family court discharged the children from the Cabinet’s care

when it ordered the boys to live with the aunt and closed the case. The answer turns on

Kentucky law. In Kentucky, “[i]f a child has been removed from the home and placed in the

custody of . . . the cabinet, a judge of the District Court shall conduct a permanency hearing” on

an annual basis. Ky. Rev. Stat. Ann. § 610.125(1) (West 2016). At the permanency hearing, the

judge must decide, among other things, whether the child should be placed for adoption, placed

with a permanent custodian, returned to the parent, or kept in foster care. Id. The Family Court

Rules of Procedure and Practice provide that “[a]ny order of permanent custody” must be on

form AOC-DNA-9. Fam. Ct. R. P. Prac. 22(4). Pursuant to that form, the court must

affirmatively place the child in permanent custody and discharge the Cabinet of further

responsibility.

No. 16-5461 D.O., et al. v. Glisson Page 11

The parties proceeded below on stipulated facts because the family court records are

sealed. The only facts regarding the children’s placement with the aunt are as follows:

 “R.O. was granted temporary custody by the Fayette Family Court of D.O. on March

27, 2013.”

 “R.O. also accepted placement of A.O. on February 21, 2014 via Order of Fayette

Family Court where the DNA case of A.O. had also been transferred.”

 “On September 10, 2014, the Fayette Family Court closed the DNA action of both

boys by granting joint custody to R.O. and C.O. The children were Ordered to reside

with R.O.”

 “Although the [guardian ad litem] made a Motion [to Order the Cabinet to pay

maintenance fees] on May 14, 2014, the Court declined to issue further Orders on

May the 21st, indicating that permanency had been achieved.”

Though the Cabinet avers that R.O. is the children’s permanent guardian, it has not identified

evidence that the family court held a permanency hearing or discharged the children from the

Cabinet’s care. For its part, the family contends that the Order granting R.O. custody “was

issued in a DNA review hearing, not in a permanent custody hearing as required” by state law,

and that the “order was simply written on the docket sheet. It was not entered on the AOC-

DNA-9 Order-Permanent Custody form as required by Rule 22.”

In a supplemental memo and at oral argument, the Cabinet contended that the children

must be in R.O.’s permanent custody because the family court closed the case. According to the

Cabinet, if we find the children remain in state custody, it will create an “indeterminate legal

purgatory” for children not in permanent custody, but also without an open family court case.

But under Kentucky law, there is nothing indeterminate about the children’s status: foster

children remain in the Cabinet’s custody until formally discharged by court order. The Cabinet

also suggested that requiring strict adherence to state law elevates form over substance. We are

unpersuaded. Requiring the Cabinet to abide by proper procedures promotes important

interests—namely, certainty about the custody status of foster children.

Thus, on remand the district court should determine whether the family court

affirmatively discharged the children from the Cabinet’s custody. If the court finds no

affirmative discharge, then the children remain the Cabinet’s responsibility.

No. 16-5461 D.O., et al. v. Glisson Page 12

2. Foster Family Home

The Cabinet must provide maintenance payments only if “the child has been placed in a

foster family home or child-care institution.” 42 U.S.C. § 672(a)(2)(C). The Act defines “foster

family home” to mean a “home for children which is licensed by the State in which it is situated

or has been approved, by the agency of such State having responsibility for licensing homes of

this type, as meeting the standards established for such licensing.” Id. § 672(c) (emphasis

added).

The Act contemplates two categories of foster families. The first category includes

licensed foster parents, who usually care for unrelated foster children. To become licensed,

prospective foster parents must satisfy certain safety standards, which include passing a

background check and submitting to a home evaluation. Id. § 671(a)(20). The state also

establishes non-safety standards, id. § 671(a)(10), which in Kentucky include mandatory periodic

training.

The second category consists of approved foster homes, which typically care for a

relative child. Reflecting Congress’s preference that children live with family members, id.

§ 671(a)(19), the Act allows states to place children with unlicensed relatives. To obtain

approval, the home must “meet[] the standards established for such licensing.” Id. § 672(c).

Each state may waive non-safety standards on a case-by-case basis for children in relative foster

family homes. Id. § 671(a)(10)(D). Furthermore, the Act requires states to give preference to

adult relative caregivers only when the relative caregiver meets the relevant safety standards. Id.

§ 671(a)(19).

Here, the parties stipulated to the following:

 “[The mother] stipulated to dependency of A.O. on December 13, 2012 in the private

petition in Clark County and to neglect of D.O. in April of 2013 in the Fayette County

Family Court DNA proceeding. Accordingly, A.O. was initially placed with the

person who made the petition, a non-relative placement, and D.O. was initially placed

in foster care.”

 “R.O. is the maternal great aunt of the children. She is a para-educator (teacher’s

assistant) for Fayette County public schools. CHFS conducted a standard home

No. 16-5461 D.O., et al. v. Glisson Page 13

evaluation and criminal background check on R.O. and eventually both children were

placed in her home by Court Order.”

The family argues that the Cabinet approved R.O. to be a foster parent. Prior to placement, the

Cabinet verified that R.O. met relevant non-safety standards by conducting a home evaluation

and a background check. After determining that her home was safe, the family court moved the

children from another foster provider to her care. R.O. therefore argues that the Cabinet

“approved” her as a foster parent for the children.

Kentucky offers several arguments in response. Kentucky distinguishes between “foster

care” and “kinship care.” According to Kentucky, “foster care” refers to licensed foster family

homes. “Kinship care,” by contrast, refers to relative caregivers. Although the Cabinet must

remit maintenance payments to foster parents, the Cabinet need only pay kinship care providers

“[t]o the extent funds are available.” Ky. Rev. Stat. Ann. § 605.120(5) (West 2016). Due to

inadequate appropriations, Kentucky ceased funding its kinship care program.

To the extent the Cabinet’s failure to make maintenance payments turns on the distinction

between relative and non-relative foster care providers, it plainly violates federal law. In Miller

v. Youakim, 440 U.S. 125 (1979), Illinois placed two children with their older sister, Linda

Youakim, and her husband. Id. at 130. “The Department investigated the Youakim home and

approved it as meeting the licensing standards established for unrelated foster family homes

. . . .” Id. Yet, “[d]espite this approval, the State refused to make Foster Care payments on

behalf of the children because they were related to Linda Youakim.” Id. The Court reviewed the

definition of “foster family home.” Id. at 130–31. After noting that the statute “defines this

phrase in sweeping language,” the Court found that “Congress manifestly did not limit the term

to encompass only the homes of nonrelated caretakers. Rather, any home that a State approves

as meeting its licensing standards falls within the ambit of this definitional provision.” Id. at

135.

Though Congress changed aspects of the Act over the ensuing years, it has not added any

provision distinguishing relative and non-relative foster care providers. Nor has it modified the

definition of “foster family home” that the Court interpreted in Youakim. Compare id. (defining

“foster family home” under prior version of the Act), with 42 U.S.C. § 672(c). Thus, if

No. 16-5461 D.O., et al. v. Glisson Page 14

Kentucky is denying benefits because the aunt is related to the children, it is violating federal

law.

Second, Kentucky notes that the Act makes kinship guardianship assistance optional:

[A]t the option of the State, [the plan] provides for the State to enter into kinship

guardianship assistance agreements to provide kinship guardianship assistance

payments on behalf of children to grandparents and other relatives who have

assumed legal guardianship of the children for whom they have cared as foster

parents and for whom they have committed to care on a permanent basis, as

provided in section 673(d) of this title.

42 U.S.C. § 671(a)(28). Under § 673(d), states may provide kinship guardianship assistance on

behalf of children who previously resided “for at least 6 consecutive months in the home of the

prospective relative guardian” and for whom the prospective guardian committed to caring on a

permanent basis. Id. § 673(d)(3)(A). But kinship guardianship assistance applies only when the

relative becomes the child’s permanent guardian, not while the child is in temporary status. As

noted above, it is unclear whether R.O. is the children’s permanent guardian, or whether the

placement is temporary. If R.O. has temporary custody of the children, then the Cabinet’s

argument about kinship guardianship assistance is irrelevant.

Accordingly, because the Cabinet “conducted a standard home evaluation and criminal

background check on R.O.” prior to delivering the children to her care, she is an approved foster

care provider.

VI.

For the foregoing reasons, the district court’s decision is reversed. Upon remand, the

district court shall determine whether the Cabinet maintains responsibility for the children’s

“placement and care.” If the Kentucky court discharged the children from the Cabinet’s custody,

then the district court should dismiss the case. If not, then the district court shall award foster

care maintenance payments.2

2

Because we resolve this appeal on statutory grounds, we need not address the family’s constitutional

arguments.