Free Reply to Opposition - District Court of California - California

Case 3:07-cv-05086-WHA

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 SUSAN M. CARSON Supervising Deputy Attorney General 3 GEORGE PRINCE, State Bar No. 133877 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 4 San Francisco, CA 94102-7004 Telephone: (415) 703-5749 5 Fax: (415) 703-5480 6 7 Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Defendants. 22 23 24 INTRODUCTION The opposition to defendants' motion to dismiss correctly notes that the State's only v. JOHN A. WAGNER, Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family services Division of the California Department of Social Services, in her official capacity,, CALIFORNIA STATE FOSTER PARENT ASSOCIATION, CALIFORNIA STATE CARE PROVIDERS ASSOCIATION, and LEGAL ADVOCATES FOR PERMANENT PARENTING,, Plaintiffs, C 07-5086 WHA REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS Hearing: January 10, 2008 Time: 8:00 a.m. Courtroom: 9, 19th floor Judge: The Honorable William H. Alsup IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

25 basis for its motion is that plaintiffs have no private right of action under 42 U.S.C. section 1983 26 to enforce the provisions of the Child Welfare Act (Title IV-E of the Social Security Act, 42 27 U.S.C. sections 670-679b). (Plaintiffs' Opposition (Opposition), p. 4:23-26.) Plaintiffs follow 28 that statement with one that is less than correct as they declare that this question has already been
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1 decided. (Id., at pp. 4:27-5:3.) 2 While plaintiffs suggest that this Court has no choice but to follow the two decisions

3 plaintiffs cite for the proposition, that is not the case. That Judge Patel found -- in California 4 Alliance of Child and Family Care Services v. Allenby, 459 F.Supp. 919 (N.D. Cal. 2006), a case 5 brought under the same general theory as used by plaintiffs here -- that a private right of 6 enforcement of foster care maintenance payments through section 1983 does exist under the 7 Child Welfare Act, her decision does not bind this Court: the doctrine of stare decisis does not 8 compel one district court judge to follow the decision of another. Starbuck v. City and County of 9 San Francisco, 556 F.2d 450, 457 n. 13 (9th Cir. 1977). Similarly, the decision in a federal rules 10 decision case out of the Northern District of Georgia has no binding authority on this Court. 11 For the reasons set forth in the moving papers, and as supplemented below, there is no

12 private right of action for plaintiffs here. This Court should so find and, accordingly, grant the 13 State's motion to dismiss. 14 15 16 In the substantive portion of the opposition that addresses the matter of private right of PLAINTIFFS HAVE NOT DEMONSTRATED A RIGHT TO FOSTER CARE PAYMENTS

17 action, plaintiffs aver that it is settled in the Ninth Circuit that private relief is available under 18 section 1983 for violations of the Child Welfare Act. (Opposition, p. 6:1-2.) However, the 19 authority cited for that proposition, ASW v. Oregon, 424 F.3d. 970 (9th Cir. 2005), turned on the 20 provisions of the "Adoption assistance program" portion of the Child Welfare Act (42 U.S.C. 21 section 673), not the "Foster care maintenance payments program" portion (42 U.S.C. section 22 672). As was discussed at footnote three of defendants' motion, ASW involved written 23 agreements between prospective adoptive parents and state or other agencies. This differs 24 significantly from the generalized notion of unspecified maintenance payments and absence of 25 individualized written agreements at play in the foster care payments portion of the Child 26 Welfare Act's provisions. 27 More importantly, within the Adoptive assistance program's details as to the

28 individualized agreements with adoptive parents is a specific directive that a State's approved
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1 plan must include provisions by which these negotiated payments to these parents are subject to 2 periodic readjustment: 3 4 5 6 7 8 The amount of the payments to be made in any case under clauses (i) and (ii) of paragraph (1)(B) shall be determined through agreement between the adoptive parents and the State or local agency administering the program under this section, which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted, and may be readjusted periodically, with the concurrence of the adopting parents (which may be specified in the adoption assistance agreement), depending upon changes in such circumstances. However, in no case may the amount of the adoption assistance payment made under clause (ii) of paragraph (1)(B) exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home.

9 (42 U.S.C. section 673(a)(3).) The Foster care maintenance payments program contains no such 10 analogous provision as to the concurrence of the foster parents, nor does it contain a specific 11 directive as to periodic or any other readjustment of payments. Thus, plaintiffs' attempt to 12 conflate section 672 and 673 must be rejected.1/ 13 As noted in the moving papers, to sustain their claims for relief here, plaintiffs must

14 demonstrate that they seek redress for violation of a federal right, not just a federal law. 15 Gonzaga University v. Doe, 536 U.S. 273, 283 (2002). Specifically, plaintiffs must thus show 16 that they have rights under the Child Welfare Act. That the statute "benefits" the plaintiff is 17 insufficient ­ the provision must unambiguously create a right: 18 19 20 21 22 Id. at 283. 23 In short, there is no right created by the foster care maintenance payments provisions We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983. Section 1983 provides a remedy only for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. Accordingly, it is rights, not the broader or vaguer "benefits" or "interests" that may be enforced under the authority of that section. (Emphasis original.)

24 of the Child Welfare Act that allow plaintiffs to maintain a 42 U.S.C. section 1983 action for 25 26 1. It was also the Adoptive assistance program portion of the Child Welfare Act that was 27 at issue in the Northern District of Georgia action on which plaintiffs partially rely here -- Kenny A. ex rel Winn v. Perdue, 218 F.R.D 277, 302-303 (N.D. Ga. 2003). This is yet another reason why 28 that decision need not be followed by this Court.
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1 vindication of it. Indeed, the foster care maintenance payments at issue here do not constitute 2 individually enforceable "rights," but rather are benefits that flow from the essentially 3 contractual agreement between the federal government and a state, by means of its approved 4 plan. As such, foster care parents are not without redress, as plaintiffs contend, but have the 5 typical remedy for state noncompliance with federally imposed conditions that the Supreme 6 Court has said exists for such programs: "not a private cause of action for noncompliance but 7 rather action by the Federal Government to terminate funds to the State." Pennhurst State 8 School and Hospital v. Halderman, 451 U.S.1, 28 (1981). 9 10 CONCLUSION Plaintiffs' assertion that foster care parents have been deprived of their federal rights,

11 privileges, and immunities under color of state law in violation of 42 U.S.C. section 1983 does 12 not withstand scrutiny. Accordingly, for the reasons stated above, defendants Wagner and Ault 13 respectfully request that this Court dismiss plaintiffs' complaint pursuant to Rule 12 (b)(6) of the 14 Federal Rules of Civil Procedure. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Reply to Opposition to Mtn. to Dismiss California State Foster Parent Association, et al. v. Wagner C 07-5086 WHA
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Dated: December 27, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California SUSAN M. CARSON Supervising Deputy Attorney General

/s/ George Prince GEORGE PRINCE Deputy Attorney General Attorneys for Defendants

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