D.N.H.: Foster Care Provisions Not Enforceable under Section 1983

In a case by parents challenging the placement of Hindi children in Christian foster homes, the district court for New Hampshire held that several provisions of federal law addressing foster care and adoption assistance are not enforceable via 42 U.S.C. § 1983.  Nevertheless, the court denied the state’s motion to dismiss the parents’ claims under the First Amendment. BK and SK v. New Hampshire Dept. of Health and Hum. Servs., No. 09-cv-94-JL, 2011 WL 4527059 (D.N.H., Sep. 30, 2011). Judge Laplante, nominated by George W. Bush, wrote the opinion.

“BK” and “SK” are observant Hindi, believe that cows were sacred animals, and refuse to eat or serve beef. The New Hampshire Department of Health and Human Services (HHS) removed their three minor children to three separate foster homes. According to BK and SK, the foster parents served beef and took the children with them to Christian religious services. One foster family allegedly once sent the child in their custody to school without lunch, telling her “it was too hard to make her a lunch she could eat.” The parents filed a lawsuit against HHS claiming violations of their rights under the First Amendment, federal law, and state law. The defendants moved to dismiss the lawsuit.

The defendants argued that there is no private right of action to enforce the First Amendment.  The district court rejected that contention, noting that the amended complaint cited to 42 U.S.C. § 1983, which provides a cause of action for the First Amendment claims.

The court then addressed the enforceability under 42 U.S.C. § 1983 of three provisions of federal law involving foster care.  The court first addressed 42 U.S.C. § 671(a)(15), which requires states to make reasonable efforts to reunify families. The Supreme Court ruled in Suter v. Artist M., 503 U.S. 347 (1992), that section 671(a)(15) did not create a privately enforceable right. Then when Congress enacted the “Suter-fix,” 42 U.S.C. § 1320a-2, it stated it did not intend to overrule the holding in Suter. The court therefore concluded that section 671(a)(15) does not provide a privately enforceable right.

Next, the court considered 42 U.S.C. § 671(a)(31), which requires states to make reasonable efforts not to separate siblings. The court found the “reasonable efforts” language of § 671(a)(31) to be equivalent to the “reasonable efforts” language of § 671(a)(15).  In both provisions, the “reasonable efforts” language was not sufficiently precise or specific to confer enforceable rights.  The court further stated that the availability of an enforcement mechanism whereby the federal government withholds federal payments if state plans do not conform to federal requirements, “suggests that the provision was not intended to create any private rights.”

The court addressed the impact of the Suter-fix on the enforcement of laws under section 1983, finding that the fix does not mandate a return to pre-Suter case law.  Instead, the court relied upon decisions from several courts of appeals to conclude that the Suter-fix allows courts to follow Suter, except in its rationale that focused on the placement of rights within state plan requirements. In the alternative, the court noted that under pre-Suter standards, § 671(a)(31) would not meet the criteria for enforcement under section 1983, because the provision is too vague and amorphous and is not couched in mandatory terms.

The plaintiffs also sought to enforce 42 U.S.C. § 622(b)(7), which requires states to diligently recruit foster parents who reflect the “racial and ethnic diversity of children in the state.” The court relied upon its earlier reasoning and held that the provision’s instructions “defy ready definition, or judicial application.” The court concluded that this provision also lacked a privately enforceable right.

The court briefly discussed the plaintiffs’ state law claim of “negligent and reckless infliction of emotional distress.” The defendants argued that the plaintiffs failed to state a claim because the defendants owed no duty to the plaintiffs. The court agreed. State agencies only acquire a duty to the child when they take custody, and they do not acquire a duty towards the plaintiffs.

–Nate Vogel, University of Pennsylvania Law School, class of 2011

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