Amicus Curiae Brief — Suter v. Artist M.

BEST AVAILABLE COPY

ie

—" Sa a

QUESTIONS PRESENTED

The National Council of Juvenile and Family Court

Judges will address the following issues:

| 1. Whether the full implementation of the Adoption

| Assistance and Child Welfare Act of 1980, Pub. L.

96-272, 94 Stat. 500, requires the availability of pri-

vate causes of action under 42 U.S.C. § 1983.

2. Whether the existence of private causes of action

in the federal courts will enmesh federal courts in

family and child welfare issues in a manner that in-

terferes with the role of state courts under the Adop-

tion Assistance and Child Welfare Act.

ii

TABLE OF CONTENTS

“QUESTIONS PRESENTED ......cccccccsessssesseseceeseeseeeeers

TAREE OF AUTTURIIIITIIIG .. cccccecsscsccsnussesennianaanl

ESE CE AID cecesncecosssiicensnenteniianans Gian

HISTORY OF THE COUNCIL’S ACTIVITY IN PER-

SEADEIOCY PRADIIIIG .ccceccececsesessnscnnenesitiiiienananel

FY) ET

I.

I.

THE AACWA CANNOT BE ADEQUATELY

IMPLEMENTED WITHOUT PROVISION OF

PRIVATE CAUSES OF ACTION EITHER TO

REMEDY SYSTEMIC FAILURES TO ALLO-

CATE RESOURCES OR TO TAKE APPRO-

PRIATE ADMINISTRATIVE STEPS TO

ATTAIN COBRPLAAIITS ccccscsessscesstvantenindensones

A. As a Consequence of Multiple Failures of

Government, Juvenile and Family Court

Judges Remain Unable to Fulfill Judicial

Responsibilities Under the Act ...............

B. There Are a and _ Increasin

Barriers to Progress In Achieving Full

and Faithful Compliance with the Con-

gressiona- Mandates ..............ccccsssssccceeees

C. The Size and Scope of the Problems are

NO on in RO

D. Private Causes of Action Are Effective

Tools for Implementing Statutory Pro-

grams Like the AACWA ...........00cccccee

A PRIVATE CAUSE OF ACTION FOR SYS-

TEMIC FAILURES WILL NOT INTERFERE

WITH THE ROLE OF STATE JUDGES .........

ili

Ill. THE COUNCIL TAKES NO POSITION ON

WHETHER THE AACWA IN ITS PRESENT

FORM CREATES A PRIVATE CAUSE OF

IIIT citiieititiatsnssneenenesssnessoseessseseeserescecececeees 18

STITT Sisitnitinindniientcsteseasesnseciesesevscrscccooeseess 19

iv

TABLE OF AUTHORITIES

CASES:

Barber v. Barber, 62 U.S. (21 How.) 582, 16 L.Ed.

Se I cereale aie 17

Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct.

1200, 43 L.Ed.2d 482 Re 16

New Orleans Public Serv. v. Council of New Orle-

ans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d

298 SUID cheenitseibessbstdaiateniiatanininetsesieisinimaieicaesiti iain 16

Penzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct.

1519, 95 L.Ed.2d 1 (1987) iietianiniinianatitiiasinnts 16

Thompson v. Thompson, 484 U.S. 174, 108 S.Ct.

513, 98 L.Ed2d 5) 512 eee 17

es x v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

Ed.2d 669 (1971) screethiseninbtideiiaendniiehdiimasisittinisaidetamans 16

STATUTES:

Adoption Assistance and Child Welfare Act of 1980,

Pub. L. 96-272, 94 Stat. 500 o.....ccccccecceeecee. passim

i Nt I ita

42 U.S.C. § G71(aX ISNA) .............cccccccccsecessccsceseseees

42 U.S.C. § 671(aX 5B) .0........cccccccccesscesecessseeeeees

Ge WAR. 8 TID cccccecccescerccncccscoccccocecsseccccnsecesasssenes 17

OTHER AUTHORITIES:

D. Daro and K. McCurdy, Current Trends in Child

Abuse Reporting and Fatalities: The Results of

The 1990 pet Fifty-State Su National

Committee for the vention of Child Abuse

GUE? <nadicinnsencsteneteonmtasmenpidiininiemiatalintiaaltieieninens 12

Table of Authorities Continued

Innovative Child Welfare Services Programs De-

signed to Preserve Families: Hearings Before

the Subcomm. on Human Resources of The

House Comm. on Ways and Means, 102nd

Cong., Ist Sess. (1991) (statement of R.J.

FitzGerald, Family Court Judge, Jefferson Dis-

trict Court, Louisville, Kentucky) ...................

R. Kusserow, Barriers to Freeing Children for

Adoption (1991) .....c.cccecscccssssssseseseceseseseeseseeceees

National Commission on Children, Final Report, Be-

yond Rhetoric: A New American Agenda for

Children and Families (1991) ..........ccccccccceeeeee

National Council of Juvenile and Family Court

Judges, July, 1989 Resolution .................0000+-.

National Council of Juvenile and Family Court

Ju , Protocol for Making Reasonable Efforts

in Related Dependency Cases, prepubli-

cation ERE Ra

Federally Funded Child Welfare, Foster Care, and

Adoption Assistance Programs: Hearings Be-

fore the Subcomm. on Human Resources of the

House Comm. on Ways and Means, 101st

ee 8 2nd Sess. 249 (1990\statement of W.D.

Reader, Senior Judge, Stark County Family

6G se

1 R.T. Yoshikami, et al., Assessing the Implemen-

tation of Federal Policy to Reduce the Use of

Foster Care, Children’s Bureau, Administration

for Children, Youth and Families, Office of Hu-

man Development Services, Dept. of Health

and Human Services (1984) ..........cccccccccccceeeeee

Page

11

10

10

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1991

No. 90-1488

SuE SuTER, et al.,

Petitioners,

Vv.

ARTIST M., et al.,

Respondents.

—

On Writ of Certiorari to the

United States Court of Appeals

For the Seventh Circuit

BRIEF OF THE NATIONAL COUNCIL OF

JUVENILE AND FAMILY COURT JUDGES AS

AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF AMICUS

This brief amicus curiae is being filed with the

consent of the parties pursuant to Rule 37. Letters

of consent are on file with the Clerk. The National

Council of Juvenile and Family Court Judges was

founded in 1937 and is the oldest national judicial

membership organization in the United States. The

Council serves as the only national organization con-

stituted of members of state juvenile and family

to

courts. The Council’s current membership encompas-

ses an estimated 2,500 juvenile and family court

judges and related juvenile justice professionals.

One of the primary goals of the Council is to offer

continuing education for the nation’s judiciary. In

1969, the National College of Juvenile and Family

Law was established as the Council’s training division.

Both the Council and the training College are head-

quartered in the Midby-Byron National Center for Ju-

dicial Education on the University of Nevada campus

in Reno, Nevada. The research division of the Council

is the National Center for Juvenile Justice, located in

Pittsburgh, Pennsylvania.

The members of the Council are deeply involved in

child welfare issues, both professionally and person-

ally. The implementation of the Adoption Assistance

and Child Welfare Act of 1980, Pub. L. 96-272, 94

Stat. 500, (‘the AACWA”’) directly affects the inter-

ests of the Council and its members, particularly the

judicial members who hear and decide child welfare

cases under the provisions of state law and the

AACWA. The Council and its members have neces-

sarily acquired extensive practical experience and ex-

pertise in administering the provisions of the AACWA

and offer a unique perspective on the impact of that

Act and the consequences of allowing private causes

of action to enforce the AACWA. In July, 1989, the

Council adopted a resolution that the AACWA “should

be amended to clarify that there is a private cause

of action under the Act.” National Council of Juvenile

and Family Court Judges, July, 1989 Resolution ¢

9.

Because the issue in this case is one the Council

has already addressed and one which directly affects

its members’ collective and individual interests, it has

a legitimate interest in the decision by this Court.

Because the briefs of the Petitioner and amici sup-

porting the petitioner rely, in part, on arguments

about the impact of private causes of action on state

court judges, the Council believes it would be both

appropriate and beneficial for this Court to receive

and consider the Council’s views.

SUMMARY OF ARGUMENT

Based on the extensive experience of the Council

and its members in deciding cases affected by the

AACWA, the Council believes that full and successful

implementation of the congressional policies expressed

in the AACWA requires the availability of private

causes of action under federal law. In accepting fed-

eral funds, the legislative and executive branches of

our governments have agreed to attempt to insure

that the goals and purposes of the AACWA are car-

ried out. Private causes of action can address issues

of allocation of state and local resources to determine

whether those systemic actions have been adequate.

Individualized judicial decisions on “reasonable ef-

forts’’ to protect a child’s interests are necessarily

limited in their ability to reach such general issues

of resource allocation.

The Council recognizes and supports the primary

role of state court judges in adjudicating individual

cases under applicable state law and the AACWA.

The Council feels, however, that the role of state

judges is not threatened or impaired by the existence

of a private cause of action under federal law to

remedy systemic problems of inadequate implemen-

tation of the AACWA. To the contrary, the Council

believes that the existence of such an alternative to

individualized determinations is essential if our courts

are to be able fully and faithfully to follow the com-

mands of state and federal law. For that reason the

Council supports the recognition of private causes of

action under the AACWA, in federal court, to decide

claims of systemic failure to follow the commands of

federal law. Federal judicial decisions on the adequacy

of state actions at the systemic level dq not threaten

the statutory and traditional role of state courts in

making judicial determinations in individual cases.

The Council takes no position on whether the ex-

isting AACWA should be judicially interpreted to rec-

, * uch actions or legislatively amended to permit

‘tions. The Council believes the Court will be

1uily advised by the parties and the other amici as

to the merits of the precise legal issue before it. The

Council’s interest in this case is in informing the Court

that this organization of state court judges who im-

plement the AACWA on a regular basis does not

believe that a federal private cause of action inter-

feres with their jurisdiction, but instead believes that

such actions are essential to the proper performance

of their judicial duties.

HISTORY OF THE COUNCIL’S ACTIVITY

IN PERMANENCY PLANNING

In 1974, the Council first began its efforts to im-

prove judicial review of abused and neglected chil-

dren. The initial focus was on children already in

substitute placements such as foster care homes, or

institutional placements. Council members set out to

examine the nation’s foster care population, find out

why children lingered too long in foster care, suffered

through multiple placements, constantly changed so-

cial service personnel and were provided inadequate

service programs.

The Council called for expanded and increased ju-

dicial review of children in placement, and strongly

supported allied child welfare organization efforts

across the nation to increase “permanency planning”’

for each dependent child under the jurisdiction of ju-

venile and family courts. Permanency planning is the

term used to characterize efforts to prevent the un-

necessary removal of children from their families, or,

when safety concerns warrant foster care, to ensure

quick family reunification. For children unable to be

safely reunited with their families, effective perma-

nency planning serves to identify adoptive placements

as quickly as possible.

The Council was a primary source of development

and endorsement for the AACWA which was de-

signed to encourage states to re-examine the policies

and procedures through which children were removed

from their natural families and placed in foster care.

Judges nationwide were joined in their focus on per-

manency planning by social workers, attorneys, state

legislators and child advocates who recognized the

harmful effects of unnecessary foster care placement

and the strong emotional need for permanency in the

lives of each abused and neglected child.

The Council enthusiastically endorsed the provisions

of the AACWA, and established its Permanency Plan-

ning for Children Project in 1980. Funded by both

private and government sources, the project was de-

signed to provide training and technical assistance to

judges and other professionals engaged in child place-

ment decisions. The project helped to establish Per-

manency Planning Task Forces in most of the 50

states. Each State Task Force was comprised of

judges, social service agency personnel, legislators,

attorneys, child advocates, citizen volunteers and oth-

ers engaged in child welfare issues.

ARGUMENT

I. THE AACWA CANNOT BE ADEQUATELY IMPLE-

MENTED WITHOUT PROVISION OF PRIVATE CAUSES

OF ACTION EITHER TO REMEDY SYSTEMIC FAIL-

URES TO ALLOCATE RESOURCES OR TO TAKE AP-

PROPRIATE ADMINISTRATIVE STEPS TO ATTAIN

COMPLIANCE

During the early phases of the Council’s Perma-

nency Planning Project, it was quickly concluded that

increased review and monitoring of abused and ne-

glected children would not be possible without in-

creased community resources. While there have indeed

been notable permanency planning achievements in

jurisdictions throughout our nation, the successes are

overshadowed by the failure of the Act to be fully

implemented in many of the 50 states. Although the

Act’s requirements concerning regular judicial review

of abused and neglected children have promulgated

new interaction and cooperation between courts and

social service agencies, the ‘‘reasonable efforts’’ pro-

vision of the Act remains inappropriately and inad-

equately implemented. This failure to fully implement

the Act can be attributed, first, to initial confusion

regarding its provisions, and, secondly, to the inad-

equacy of government’s response to the crisis-level

increase in the number and complexity of abuse and

neglect cases coming to the attention of agencies and

state court systems.

-

Among the substantive reforms contained in the

Act was a requirement that states develop written

case plans for each child in federally reimbursed and

state-supervised foster care. This case plan is required

to promote placement of each child in the least re-

strictive setting, in close proximity to the natural par-

ent’s residence, consistent with the best interests and

special needs of the child. 42 U.S.C. § 675.(5)A). Since

1983, the Act has required state judges to determine

whether ‘‘reasonable efforts’’ have been made to en-

able children to remain safely at home and to avoid

unnecessary foster care. 42 U.S.C. § 671(aX15\A). The

Act also requires that reasonable efforts be made to

reunite foster children with their biological parents.

42 U.S.C. § 671(aX15\B).

The nation’s juvenile and family court judiciary

must, on a consistent and continuing basis, determine

whether “reasonable efforts’’ were provided by the

agency to prevent the necessity for foster care place-

ment of each child; or, in cases in which a substantial

risk of harm to the child makes placement unavoid-

able, to rehabilitate and reunify each child’s family.

This burden is a heavy one, and it is one which the

juvenile and family court judiciary cannot shoulder

without assistance.

A. As a Consequence of Multiple Failures of Government,

Juvenile and Family Court Judges Remain Unable to

Fulfill Judicial Responsibilities Under the Act

The well-intentioned designers of the AACWA in-

tended to rechannel government attention and re-

sources to avoid unnecessary foster care and to

preserve families. As noted in a 1984 federal study,

the Act “was designed to remove barriers to per-

manency based in previous federal policy by creating

a system of fiscal incentives and programmatic safe-

guards that would promote the achievement of three

major goals: 1) to prevent unnecessary entry into fos-

ter care; 2) to improve the quality, extend the range,

and increase the coordination of services to children

and their families; and 3) to promote timely reunifi-

cation of families in which the child’s entry into foster

care is unavoidable, or assure in other ways, such as

adoption, the child’s permanent status in a protected

family setting.’”’ 1 R.T. Yoshikami, et al., Assessing

the Implementation of Federal Policy to Reduce the

Use of Foster Care, Children’s Bureau, Administration

for Children, Youth and Families, Office of Human

Development Services, Dept. of Health and Human

Services, 2 (1984).

Despite initial optimism in state-by-state implemen-

tation of the law, both state child welfare agencies

and juvenile and family court systems encountered

difficulty in complying with its provisions. Adminis-

trative and judicial response to the Act has not been

uniform across states. ‘“‘The state judicial response to

the requirements of [the AACWA] varies dramatically

from jurisdiction to jurisdiction. ... State statutory

changes for the most part were consistent not nec-

essarily with the intent of the Act, but with the man-

ner in which the [statutory] audits were focused! For

example, ... the audit questions whether there has

been a judicial finding of reasonable efforts. States

assumed that one finding of reasonable efforts was

sufficient [to obtain federal] dollars, [and thus] passed

statutes or promulgated regulations requiring a ju-

dicial finding of reasonable efforts prior to a child’s

removal or commitment.” Innovative Child Welfare

Services Programs Designed to Preserve Families:

Hearings Before the Subcomm. on Human Resources

of The House Comm. on Ways and Means, 102nd

Cong., lst Sess. 64 (1991) (statement of R.J. Fitz-

Gerald, Family Court Judge, Jefferson District Court,

Louisville, Kentucky) (hearings have been submitted to

GPO for printing).

B. There Are Continuing and Increasing Barriers to Prog-

ress In Achieving Full and Faithful Compliance with

the Congressional Mandates

Several states have made rapid and successful sys-

temic improvements toward compliance with the Act.

Yet the nation’s social service and child welfare sec-

tors remain, for the most part, unable to effectively

implement the Act due to overburdened personnel and

under-funded service programs. Estimates of the

number of abused and neglected children in need of

family preservation services continue to climb, and

the number of children already in government care

who need family reunification services is also increas-

ing.

“In 1977, an estimated 502,000 children were in

foster care. By 1980 this number had dropped to

302,000, and it declined further to a low of 275,000

in 1983. During the mid-1980s, however, estimates of

the number of children in foster care began to in-

crease reaching approximately 340,000 by the end of

1989. Recent projections estimate that 550,000 chil-

dren will be in foster care by 1995.’’ National Com-

mission on Children, Final Report, Beyond Rhetoric:

A New American Agenda for Children and Families

283-84 (1991).

Juvenile and family courts increasingly are over-

burdened with crowded court dockets and no increase

in resources to permit adequate compliance with the

10

Act’s requirements. ‘‘The nationally noted upsurge in

substance abuse also has served to increase burdens

on our nation’s juvenile and family court systems.

Substance abuse is an element that is present in most

dependency cases. Both courts and social service

agencies now are struggling with how to evaluate

risks to children of substance-abusing families, and

identify the family preservation service needs of drug-

exposed mothers and infants.” Federally Funded

Child Welfare, Foster Care, and Adoption Assistance

Programs: Hearings Before the Subcomm. on Human

Resources of the House Comm. on Ways and Means,

101st Cong., 2nd Sess. 249 (1990\statement of W.D.

Reader, Senior Judge, Stark County vemny Court,

Catton, Ohio).

In response, Council members and consultants have

developed a new, advisory protocol to assist judges

confronted by drug and other substance abuse-related

issues. ‘Such a redefinition is necessary because our

service system has not previously been constructed

to deal with mothers and children with substance

abuse problems. New and different types of family-

focused services have been created that are both ef-

fective and economical. These promising, new, family-

centered programs feature a multi-disciplinary ap-

proach and early intervention with families. ... The

preservation of one family of one drug-exposed infant

can help to ensure the health and safety of present

and future siblings, and possibly, future generations.

When this can be done for less cost than would oth-

erwise be incurred for the unnecessary dissolution of

the family, it makes a compelling case for expansion

of such efforts.’’ Protocol for Making Reasonable Ef-

forts in Drug-Related Dependency Cases, National

11

Council of Juvenile and Family Court Judges 3 (1991)

(prepublication draft).

The increased demands on juvenile and family court

calendars for expanded hearings on increasingly com-

plex abuse and neglect matters, as well as the in-

crease in the number of hearings promulgated by the

Act, have strained judicial resources to the limit. Fed-

eral researchers have found that this overburdening

of the court system has led children whose families

cannot be rehabilitated and reunited to continue to

be denied the opportunity for a permanent adoptive

placement. ‘Scheduling and conducting court hearings

delay implementation of adoption plans. Delays most

frequently result from interruptions of proceedings

for other civil matters, crowded court dockets, and

inability to coordinate the schedules of a variety of

hearing participants.’”” R. Kusserow, Barriers to

Freeing Children for Adoption, ii (1991).

The HHS adoption study recommended that,

“{s]tate governments should .. . provide adequate re-

sources to enable State courts to hear and rule on

child dependency cases in a timely manner; and offer

increased training on permanency planning, in gen-

eral, and on termination of parental rights, in par-

ticular, for child welfare staff, judges, public

attorneys, and the staffs of contractual service prov-

iders.”’ Kusserow, supra, at iii.

C. The Size and Scope of the Problems are Increasing

The child welfare system continues to experience

dramatic increases in child abuse or neglect referrals.

“Nationwide, child abuse reports increased 31% dur-

ing the period 1985-1990. During the period 1989-90,

an estimated 2,508,000 children were reported to child

12

protection service agencies as victims of child mis-

treatment or about 39 out of every 1,000 U.S. Chil-

dren. The numbers indicate a steady growth in child

abuse reports throughout the second half of the 1980s,

with annual increases averaging around 5% since

1985." D. Daro and K. McCurdy, Current Trends in

Child Abuse Reporting and Fatalities: The Results of

The 1990 Annual Fifty-State Survey, National Com-

mittee for the Prevention of Child Abuse 3 (1991).

The continuing increases in the complexity and se-

verity of abuse and neglect matters have led many

juvenile and family court judges to conclude that the

amount and quality of social services being offered

to children and their families remains inadequate.

The increased review responsibilities and resultant

administrative tasks which the AACWA requires of

juvenile and family court judges are taxing already

overburdened people and systems. The gatekeepers of

our nation’s foster care system are its juvenile judges.

It is state judges who must ultimately decide whether

a family in crisis will be broken apart and children

placed in foster care or whether placement can be

safely prevented through the reasonable efforts of our

social service system. If reasonable efforts to preserve

or reunify families are not evaluated and ensured

through effective judicial review, then families and

children are unnecessarily harmed.

D. Private Causes of Action Are Effective Tools for Im-

plementing Statutory Programs Like the AACWA

Given conflicting priorities, it has unfortunately

been true that many states have adopted limited pro-

grams instead of allocating sufficient resources to

faithfully implement the intent of Congress in passing

13

the AACWA. The private cause of action under fed-

eral law is an indispensable tool which serves to assist

the nation’s juvenile and family court judiciary in the

appropriate and just application of the provisions of

the AACWA. Such private actions have shown them-

selves to be an effective and often indispensable

means of spurring legislative and executive bodies into

more effective implementation of federally-mandated

social reforms.

The practical consequence of allowing a private

cause of action is to provide incomparable aid to ju-

venile and family court attempts to ensure “‘reason-

able efforts’’ to prevent inappropriate foster care, and

to speed the reunification of families. The practical

consequence of disallowing a private cause of action

would be to weaken the AACWA, leaving those chil-

dren and families who have not been provided with

reasonable social service efforts to often ineffective

case-by-case review of individual agency decisions.

Federal courts have often been called upon to de-

cide whether state governments are complying with

federal social programs. The decisions of this Court

that have recognized the existence of private causes

of action under a variety of federal statutes have

established a body of precedent that has been effec-

tively used by counsel for beneficiaries of federal pro-

grams to obtain their statutorily-mandated benefits.

The realities of diminishing government resources and

entrenched administrative practices have often meant

that the only effective tool for obtaining compliance

has been the private cause of action in which a federal

judge is asked to review systemic problems and take

appropriate action to obtain compliance with congres-

sional mandates. While some would argue that it is

14

preferable to avoid such federal judicial involvement

with state activities, our federal system recognizes

and enforces the supremacy of federal law and state

judges have adjusted to the involvement of the federal

judiciary in obtaining compliance with law.

In assessing the necessity for private causes of ac-

tion, it should be noted that the beneficiaries of the

AACWA-—neglected and abused children—are among

the least politically powerful segments of our society.

Unable to participate directly in the political process,

children depend upon the efforts of their parents,

guardians, friends and counsel for effective imple-

mentation of their legal rights. The Council strongly

believes that those rights require the presence of a

federal private cause of action to maximize the pos-

sibility that these children will be treated as Congress

intended.

The Council believes that the existence of a judi-

cially-enforceable private action to assure compliance

with the “reasonable efforts’ provision of the

AACWA will prompt improvements in the range and

availability of family preservation services. Services

to ensure the safety of children within their own fam-

ilies will receive new attention. There will be an in-

crease in the level of cooperation between disciplines,

including the judiciary, social service agencies,

attorneys and child welfare advocates. The number

of unnecessary out-of-home placements will be re-

duced, ensuring that as many children as possible

have stable, caring families not only during their early

years but for a lifetime.

There are limits on what individual judges and in-

dividual jurisdictions can hope to achieve. Court rul-

ings of non-compliance in individual cases have little,

15

if any, systemic effect on social service agency admin-

istration of abuse and neglect cases. The private cause

of action is an indispensable tool to increase compli-

ance with provisions of the Act.

Il. A PRIVATE CAUSE OF ACTION FOR SYSTEMIC FAIL-

URES WILL NOT INTERFERE WITH THE ROLE OF

STATE JUDGES

Several of the briefs filed in this case argue that

the recognition of a federal private cause of action

will improperly interfere with the role of state judges

in adjudicating individual cases under applicable state

law. Those briefs also argue that Congress intended

that the judicial implementation of the AACWA would

rest with state, not federal, judges and stress that

federal courts have historically declined to take ju-

risdiction in domestic relations or family law matters.

See Brief for the Petitioners at 32-33, Brief of the

United States as Amicus Curiae at 22-26, Brief of

the States as Amicus Curiae at 11-13. The Council

submits that those arguments are misplaced and rest

on a fundamentally flawed understanding of the limits

of a federal court action in implementing the AACWA.

The Council endorses the recognition of a federal

private cause of action to remedy systemic problems

such as those at issue in this case. That endorsement

does not, however, mean that the federai courts would

take over the state courts’ responsibility for adjudi-

cating individual cases. The Council would draw a

distinction between private causes of action seeking

redress for programmatic deficiencies and such ac-

tions that seek only to review individual placement

or care decisions. This Court is perfectly capable of

fashioning a judicial remedy that meets the needs of

the system without improper federal exercise of state

16

court functions. Existing doctrines of abstention or

primary jurisdiction can, we believe, be readily

adapted to direct the federal courts in the proper

direction.

If, as the petitioners contend at page 38 of their

brief, some lower federal courts have failed to rec-

ognize proper bounds of their authority and have

failed to abstain from involvement in particularized

determinations of “reasonable efforts,’”’ this Court can

use this case not only to recognize the existence of

a private cause of action under existing law, but to

outline the proper limits of that action. This Court’s

experience in adjudicating delicate issues of federal-

ism has led to a continuing development of principles

of abstention and primary jurisdiction. See, e.g.,

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971) (federal courts should abstain from

enjoining ongoing state criminal prosecutions); Hu/f-

man v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200,

43 L.Ed.2d 482 (1975) (federal courts should abstain

from enjoining civil nuisance proceedings); Penzoil Co.

v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d

1 (1987) (federal court should have abstained from

interferring in issues of adequate bond pending appeal

in a civil case). The general principle, as most recently

stated by this Court, is that federal courts should

abstain from interfering with state judicial proceed-

ings “involving certain orders that are uniquely in

furtherance of the state courts’ ability to perform

their judicial functions.”” New Orleans Public Serv. v.

Council of New Orleans, 491 U.S. 350, 368, 109 S.Ct.

2506, 2518, 105 L.Ed.2d 298, 317 (1989). Since in-

dividual child welfare determinations are uniquely ap-

propriate for state, not federal, judicial determination,

17

existing principles dictate that any private enforce-

ment action under 42 U.S.C. § 1983 not extend to

federal judicial oversight of state court determinations

in specific cases.

The Council does not see any unacceptable inter-

ference in state judicial functions from federal judicial

oversight of systemic issues of compliance with the

mandates of the AACWA. Decisions on the adequacy

of state regulatory systems, general plans and allo-

cations of resources do not threaten judicial deter-

minations in individual cases. This Court’s historical

reluctance to involve the federai judiciary in domestic

relations matters, see, e.g., Barber v. Barber, 62 U.S.

(21 How.) 582, 16 L.Ed. 226 (1859), does not neces-

sitate a wholesale abdication of a federal judicial role

in implementing the AACWA simply because the Act

deals with family law matters. Effective implemen-

tation of federal statutes is an entirely proper concern

of federal courts. Indeed it would be unusual for fed-

eral courts to abandon the field of federal statutory

interpretation just because a statute touches an area

of family law.

We do not question the wisdom of decisions such

as Thompson v. Thompson, 484 U.S. 174, 108 S.Ct.

513, 98 L.Ed.2d 512 (1988), where this Court decided

a federal court should not determine the validity of

two conflicting custody decrees under the authority

of a federal statute. The issue in that case was one

of individualized determinations based on state law.

The Council recognizes that such individualized deci-

sions are indeed the proper province of the state ju-

diciary and we seek no change in that established

limit on federal jurisdiction. At the same time, the

Council believes that statewide issues of compliance

18

with a federal statute are problems beyond the proper

role of a local state court judge, which are more

properly addressed to a federal judge with broader

authority and experience. Juvenile and domestic re-

lations judges are well-versed in family law issues and

are the proper primary judicial authority in that field.

Those same judges are not as experienced in broad

issues of federal statutory construction and the dif-

ficult and delicate issues raised when a court is asked

to order a state agency to comply with federal law.

It may be that the line between proper and im-

proper use of federal judicial power under the

AACWA is not now a bright and clear one. It may

be that the proper allocation of state and federal ju-

dicial functions cannot presently be defined with ab-

solute precision. That problem, inherent in all

adjudication of new issues, should not lead to an aban-

donment of a federal judicial role. It should instead

lead to a reasoned decision that considers all aspects

of the problem and announces guidelines that reflect

an appropriate halance of state and federal expertise.

Ill. THE COUNCIL TAKES NO POSITION ON WHETHER

THE AACWA IN ITS PRESENT FORM CRATES A

PRIVATE CAUSE OF ACTION

We noted at the outset that the 1989 Council Res-

olution calls for the amendment of the AACWA ‘“‘to

clarify that there is a private cause of action’’ under

the AACWA. The Council as a matter of policy

strongly endorses the recognition of such a cause of

action as to systemic issues of compliance. The Coun-

cil strongly believes that the early recognition of such

a cause of action would significantly improve imple-

mentation of the AACWA and significantly benefit

the thousands of children who are the Act’s intended

19

beneficiaries. The Council does not, however, seek to

advise this Court on the legal issue of interpreting

the existing statute. That task is, we recognize, prop-

erly a judicial function to be guided and affected by

the Court’s own research and experience and the

briefs of the parties. The Council seeks only to inform

this Court of its strongly-held views of what legal

structure it believes would best serve the interests of

the children as well as the state judiciary. If the at-

tainment of that goal is properly reached by inter-

pretation of the existing statute, the Council would

obviously welcome that result. If, on the other hand,

this Court concludes that the legal and policy argu-

ments advanced in support of the recognition of a

federal cause of action are more properly addressed

to the Congress, the Council is prepared to continue

its involvement in seeking legislative action consistent

with its goals and the welfare of the individuals whose

rights are at stake.

CONCLUSION

Implementation of the AACWA will be strength-

ened by recognition of a federal private cause of ac-

tion. The ability of the state courts to best serve the

needs of children will be enhanced by the recognition

of such a right. This Court has the ability to fashion

appropriate guidance for limiting federal judicial in-

tervention to systemic issues, leaving to the state

judiciary individualized determinations. In deciding

whether the AACWA as it now exists authorizes such

a private cause of action, the Council asks only that

this Court understand that not all state judges who

are significantly governed by the provisions of the

AACWA fear or oppose recognition of such a private

20

right, but instead see it as a positive addition to the

resources availabie to insure compliance with law and

service to the needs of the individuals who appear

before our courts.

Respectfully submitted,

KENNETH C. Bass, III*

THOMAS J. MADDEN

VENABLE, BAETJER, HOWARD

& CIVILETTI

1201 New York Ave., N.W.

Washington, D.C. 20005

(202) 962-4800

*Counsel of Record

Of Counsel:

ROBERT PRAKSTI

JEFFREY KUHN

NATIONAL COUNCIL OF JUVENILE

AND FAMILY COURT JUDGES

University of Nevada

P.O. Box 8970

Reno, Nevada 89507

(702) 784-6012

September, 1991