# Amicus Curiae Brief — Suter v. Artist M.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0093%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 347

## Text

BEST AVAILABLE COPY

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—" 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0093%3A14. Public record. Not legal advice.