Artist M. v. Gordon Johnson and Gary T. Morgan

MANION, Circuit Judge,

dissenting.

The Illinois Department of Children and Family Services (the DCFS) may have one of the most difficult assignments in the state. The horror stories recited by the district court produce an almost irresistible desire for judicial intervention. Although the majority presents a compassionate argument supporting such intervention, I must respectfully dissent. Contrary to the court’s holding, I believe that the “reasonable efforts” clause of § 671(a)(15) of the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 620-628 , § 670-679(a) (the “AAA”), is too ambiguous and indefinite to form a basis for a recognizable right and an enforceable obligation under the AAA or § 1983.

The district court and now this court have found that the AAA creates an individually enforceable right to “reasonable efforts” which, at this point, under the injunction invoked by the district court, means that a caseworker must be assigned to each child within three days after that child comes into the custody or under the protection of the DCFS. The majority cites the recent Supreme Court decision of Wilder v. Virginia Hospital Association, — U.S. -, 110 S.Ct. 2510 , 110 L.Ed.2d 455 (1990), as authority for establishing a child’s right to “reasonable efforts” under the AAA. I respectfully disagree. Wil der’s holding relates to a statutory provision and facts discernably different from that of the present situation. We should instead observe the more applicable legal standards and reasoning of Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 , 101 S.Ct. 1531 , 67 L.Ed.2d 694 (1981), which generally discusses the circumstances in which enforceable rights are derived from a statute’s language.

At the outset, I should add that I am not questioning whether an individual child injured by DCFS operations ever has a right of action under § 1983 and the AAA for violations of statutory or constitutional rights. For example, a foster child has a right to sue under § 1983 to enforce his due process right not to be placed with foster parents who the DCFS knows or suspects to be abusive. K.H. v. Morgan, 914 F.2d 846 (7th Cir.1990). The deliberate indifference in the placement of siblings, Aristotle P. v. Johnson, 721 F.Supp. 1002 (N.D.Ill.1989) or the placement of children in homes which detrimentally affect a child’s emotional and physical well-being, B.H. v. Johnson, 715 F.Supp. 1387 (N.D.Ill.1989), provide grounds for suit under § 1983 to remedy alleged constitutional violations. But the “reasonable efforts” language in the AAA which promotes keeping a child in his home or returning him to his home presents no constitutional guarantees, nor does it create any private statutory rights as established by the Supreme Court, see Pennhurst, supra, and Wright v. Roanoke Development and Housing Authority, 479 U.S. 418 , 107 S.Ct. 766 , 93 L.Ed.2d 781 (1987). I therefore conclude that the “reasonable efforts” clause of the AAA does not establish any substantive rights enforceable under the AAA itself or through § 1983.

I.

Section 1983 permits individual legal action for violations by State agents of federal “rights, privileges, or immunities.” This remedy is not available for simple violations of federal law. Maine v. Thiboutot, 448 U.S. 1 , 100 S.Ct. 2502 , 65 L.Ed.2d 555 *993 (1980). To establish a federal right, a statute must create an obligation binding on the governmental unit. The law must do “more than express a congressional preference for certain kinds of treatment.” Pennhursl, 451 U.S. at 19 , 101 S.Ct. at 1541 . The interest the plaintiff asserts must not be “too vague and amorphous” to be “beyond the competence of the judiciary to enforce.” Wright, 479 U.S. at 431-32 , 107 S.Ct. at 775 .

The majority concludes Wilder supports plaintiffs action under § 1983. In Wilder the plaintiff hospital association questioned the “reasonableness” of reimbursement rates established by a state to compensate health-care providers for rendering medical services under the amended Medicaid Act, 42 U.S.C. § 1396 . The Court examined a provision of the Medicaid Act (the Boren Amendment) which obligated the states, as a condition for receiving federal financial assistance, to adopt “reasonable and adequate” reimbursement rates for health-care providers rendering services under the Act. The Boren Amendment further stipulated that such “reasonable and adequate” reimbursement rates were to meet the costs of “efficiently and economically operated [medical] facilities.” The defendant State resisted the suit claiming that the Boren Amendment did not create rights for health care providers and that the “reasonable and adequate” standard was vague and thus beyond the competence of the court to interpret.

The Court in Wilder permitted the health care providers’ suit based largely on its findings that (a) the Boren Amendment imposed a binding obligation on the states participating in the Medicaid program to adopt reasonable and adequate rates for the benefit of health-care providers, and (b) the obligation of the state to adopt rates that are reasonable and adequate was not too vague and amorphous to be judicially enforceable. The Court thus affirmed the principle that a State’s denial of its own clearly annunciated obligations provides grounds under § 1983 for action by the intended beneficiaries.

In Wright v. City of Roanoke Redevelopment & Housing Authority, supra, which the Wilder Court explicitly followed, tenants in low-income housing claimed they were overbilled for utilities in violation of rent ceilings imposed by the Brooke Amendment to the Housing Act of 1937, 1 and its regulations. The Court concluded the statute and regulations did create rights as derived from identifiable obligations of the states which were enforceable under § 1983. The Brooke Amendment limits the amount of rent a public housing tenant can be charged, and regulations adopted pursuant to the statute require inclusion of a “reasonable” allowance for utilities in the rent. 479 U.S. at 430 , 107 S.Ct. at 774 . The Court reasoned that both the statute and the regulations were “mandatory limitation[s] focusing on the individual family and its income.” Id. at 430 , 107 S.Ct. at 774 . Additionally, the Court rejected the argument that the provision for a “reasonable” utility allotment was too vague to create an enforceable right. Because the regulations set out guidelines for the housing authorities to follow in determining the utility allowance, the right was “sufficiently specific and definite to qualify as [an] enforceable righ[t] under Pennhurst and § 1983 [and was] not ... beyond the competence of the judiciary to enforce.” Id. at 432, 107 S.Ct. at 775 .

In both Wilder and Wright , the Court gave substance to a statutorily designated standard of “reasonableness” in § 1983 actions. Wilder interpreted and enforced “reasonable” rates, Wright interpreted and enforced “reasonable” allowances for utility payments. However, the judicial treatment of the “reasonableness” language found in Wilder and Wright should have no bearing on this case. Under the statutory language in Wilder , the court need only recognize the requirement of the states to establish “reasonable and adequate” reimbursement rates. This requires little more than a comparison of the State’s established rates for medical services to those customarily charged by health care providers for the same or similar *994 treatment. A federal judge under this statutory scheme can easily discern whether the state’s proposed rates were out of line. Likewise, a court has total competence to determine the reasonableness of utility allowances by comparing them to local utility rates.

Both the Wilder and Wright Courts construed the reasonableness of specific governmental requirements. The disputed “reasonable efforts” clause of the AAA allows no such precision. The “reasonable efforts” clause creates no specific mandate to the DCFS. Therefore there is nothing for the court to determine as being reasonable or unreasonable. Rather than concentrating on the “reasonableness” of a particular governmental activity, § 671(a)(15) relates to the overall reasonableness of every aspect of the foster care program. This significantly distinguishes the present case from Wilder and Wright . Indeed, it is not at all apparent from reading § 671(a)(15) what precisely are the states’ obligations under the AAA, and what enforceable rights have been established for the AAA’s beneficiaries. A state’s duty to exert “reasonable efforts” in general does not suggest any particular obligation. In contrast, a court can easily determine and enforce a state’s obligation to establish “reasonable” reimbursement rates, or provide for “reasonable” utility allowances when setting public housing rents.

Additionally, this court insists that Wilder categorically rejects the argument that “reasonable” and “adequate” are vague and unenforceable and concludes the courts are capable of determining whether a state is exerting "reasonable efforts.” {Ante, pp. 986-987, and 989) What Wilder actually says, however, is that a standard like reasonableness is not vague or unenforceable when judged “against an objective benchmark of an ‘efficiently and economically operated facility’ ...” 110 S.Ct. at 2523 . Similarly in Wright , the Court felt competent to enforce the “reasonable” allowance standard only with reference to the objective benchmark of “the individual family and its income.” Both “benchmarks” provide a basis for a relatively simple judicial calculation. But in the present case, the AAA provides no such objective benchmark. Rather, the Act gives a general directive that is much too broad to give a federal judge a proper gauge from which to measure reasonable efforts.

In Pennhurst, the Court explored the problem of using ambiguous statutory language to establish state obligations and beneficiary rights. The Supreme Court held in Pennhurst that § 6010 of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 42 U.S.C. § 6000 et seq. (the “DDA”), did not create rights enforceable under § 1983 or under the DDA. The plaintiffs in the case, mentally retarded patients at a state hospital, brought suit challenging the conditions of their confinement. Plaintiffs claimed that the treatment they actually received conflicted with provisions conditioning the receipt and availability of federal funds upon state efforts to provide patients with “appropriate treatment” in the least restrictive manner. Since Pennsylvania received money under the DDA, plaintiffs filed suit under § 1983 claiming a violation of their statutory right to “appropriate treatment.” The Court found the language “appropriate treatment” and “least restrictive” setting to be “largely indeterminate” and “too thin a reed” to support a creation of rights and obligations on the states. 451 U.S. at 19 , 101 S.Ct. at 1541 . “It is difficult to know what is meant by providing ‘appropriate treatment’ in the ‘least restrictive’ setting, and it is unlikely that a State would have accepted federal funds had it known it would be bound to provide such treatment.” Id. at 24-25 , 101 S.Ct. at 1543-44 .

The Court also specified under what conditions statutory language would create substantive rights and obligations. “Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds.” Id. at 24 , 101 S.Ct. at 1543 . The Court analogized: “Legislation enacted pursuant to the spending power,” such as the AAA, “is much in the nature of a contract ... in return for federal funds, *995 the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract’, ... [t]here can ... be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.” Id. at 17 , 101 S.Ct. at 1540 .

The crucial inquiry, therefore, is “not whether a State would knowingly undertake that obligation, but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice.” Id. at 25 , 101 S.Ct. at 1544 . The Court found that the statutory language in Pennhurst fell well short of providing clear notice to the State that they, by accepting the funds under the Act, would be obligated to provide “adequate treatment” as imagined by the plaintiffs. “[It] strains credulity to argue that participating States should have known of their ‘obligations’ under” the “adequate treatment” provision. Id.

As with the language in Pennhurst, the phrase “reasonable efforts” does not communicate or prescribe any specific set of practices which unambiguously notify Illinois of the conditions it must meet in order to receive federal help. “Reasonable efforts” is an indeterminate statement, to say the least. Rather than being a specific mandate with explicitly detailed directives, § 671 merely encourages the state to set up a plan that outlines the state’s proposed method to care for distressed children requiring removal or supervision by the DCFS. Subsection (a)(15) directs the plan to include provisions that “in each case, reasonable efforts will be made____” Since every case will be different, “reasonable efforts” cannot be expected to be the same. The vagueness of “reasonable efforts” cannot create binding obligations and rights. Without proper congressional guidance we should refrain from inventing rights which interfere with the foster care system. The successful administration of the system requires substantial expertise and familiarity from its operating personnel and the juvenile courts that oversee each case. It is clear from its plain language that § 671(a)(15) is fashioned to give broad discretion to such child welfare professionals to determine what efforts are reasonable in each situation. Therefore, the courts should not intervene unless the system becomes violative of a child’s constitutional rights or rights clearly established by statute.

II.

I conclude where this argument began— with the plaintiffs’ complaint that the DCFS does not assign caseworkers quickly enough to meet the standards of the AAA once a child becomes a ward of the juvenile court under the supervision of the DCFS. I agree with this court that the AAA was designed to provide “incentives to encourage a more active and systematic monitoring of children in the foster care system.” {Ante, p. 985 citing State of Vermont Dept. of Social & Rehab. Srvs. v. United States Dept. of Health & Human Srvs., 798 F.2d 57, 59 (2d Cir.1986). Incentives in this case do not create rights and binding obligations. A State’s failure to perform under a Plan is remedied by Congress’ foreclosing federal funding. That may be the only practical alternative under the AAA. Federal courts cannot properly supervise every aspect of the DCFS operation, something they now may be expected to do given this opinion.

The magnitude of the court’s assumed obligation is apparent under the terms of the district court’s injunction. The district court enjoined defendant from:

(a) Failing to assign a caseworker capable of providing child welfare services to each of the plaintiffs and their families within three working days of the time that plaintiffs’ cases are first heard in juvenile court; and

(b) Failing to assign a caseworker capable of delivering child welfare services within three working days of the time that a previously assigned caseworker *996 relinquishes responsibility for any portion of a case.

(Emphasis added.)

The injunction refers to a caseworker “capable” of providing child welfare services. So, in addition to constructing “reasonable efforts” the court must construct the meaning of “capable” under the injunction. The injunction is not clear whether a caseworker “capable” of providing services is one who has the specialized training and ability, or who simply has the time to perform the services. One would hope both, but given the constraints on the system, that may be too much to hope for. The district court has already frowned upon en masse assignment of many cases to one caseworker, presumably even if done in three days. 2 The only solution may be very expensive (i.e., hiring and training many more caseworkers).

The right that we have created in this opinion will allow every child, by his next friend, to challenge the reasonable efforts of the caseworker. If the DCFS, through the recommendation and services of the caseworker, determines that the child should be placed in a foster home, the child's advocate could disagree and challenge the decision in federal court because, in his opinion, the “reasonable efforts” were unreasonable. The same goes for a child who is not put in a foster home, or for the child who is put in a foster home that for some reason (obviously other than his continued exposure to abuse, neglect, or exposure to physical or emotional trauma) is not to his liking.

We are confronted with a tragic class of people — children of alcohol and drug addicts, children victimized by severe domestic violence, children who are abused in unimaginable ways, children who are malnourished, sick and neglected. The district court’s order requires that a caseworker be assigned in three days. But if the caseworker, even though assigned, is not meeting someone’s definition of reasonable efforts, the district judge will again be petitioned to intervene. With this court’s approval of the district court’s finding that each of these children have an individual enforceable right to challenge the reasonable efforts of the DCFS, we can anticipate an avalanche of lawsuits seeking to obtain specific social services and mandatory injunctions governing every imaginable detail over the operation of the DCFS. Clearly this is far beyond the intent of Congress.

This opinion moves the court from its proper role as impartial arbiter of cases and controversies under the law to that of a crisis administrator of child welfare. Ironically, this decision, while attempting to advance the well-being of abused children, may instead result in the delay or denial of benefits. Delay and denial will result because standing for injunctive and declaratory relief has now been extended to every plaintiff with a notion of “reasonable efforts” that conflicts with that of the DCFS. The DCFS will most likely experience considerable paralysis because any efforts deemed unreasonable by scrutinizing plaintiffs and courts could cease, resulting in no remedial efforts while litigation continues in situations where something must be done.

Until Congress specifies certain individual rights under the AAA, this court should confine § 1983 actions against the DCFS to alleged constitutional violations such as those in K.H. v. Morgan, supra, B.H. v. Johnson, supra, and Aristotle P. v. John *997 son, supra, and otherwise stay out of what is now a reasonably streamlined and publicly accountable chain of command in the distribution of child welfare and assistance benefits. I would reverse the district court.

. 42 U.S.C. § 1437a.

. In an earlier disposition of this case, when this court entered a partial remand requesting the district court to enter factual findings concerning the current delays in caseworker assignment and reassignment, the district court, after a hearing, submitted a comprehensive set of findings. On the whole, these findings set out a complex set of problems and deficiencies related to the operation of the DCFS. These findings addressed the situation which existed as of March 2, 1990, the time the injunction was issued. The district court’s finding 27 notes: "Cases that were reassigned during a caseworker’s absence were reassigned en masse to a single caseworker, who by the nature and volume of the reassignments was not and could not be expected to provide services." From this it is difficult to see how the injunction is going to assist the overloaded caseworker and his already unmanageable workload. One wonders how the court must consider Finding 27 if a later dispute should emerge on whether such a caseworker is "capable" under the terms of the injunction.