The U.S. Supreme Court on Monday declined to hear New York state’s appeal of a U.S. Court of Appeals for the Second Circuit ruling that the Child Welfare Act created a privately enforceable right for some foster parents to sue states for costs related to child care.

The issue has generated a split among circuit courts on the question of whether the CWA provides a right to sue over benefits.

A divided Second Circuit panel last April aligned itself with the Sixth and Ninth circuits in finding that the 1980 law established a binding payment obligation on states, and provided the same kind of judicial enforcement ability that federal courts regularly look to when handling other federal benefits programs.

The CWA, the Second Circuit ruled, set out a specific monetary entitlement for items such as food, clothing, shelter and school supplies, and it tasked federal district court judges with setting the rates for compensation.

New York petitioned the Manhattan-based Second Circuit for en banc rehearing, but in a rare 6-5 vote, a bare majority of the court’s active judges refused to put the issue before the entire circuit.

Two judges, Debra Ann Livingston and José Cabranes, later voiced their strong disagreement with the vote, writing in August that the Second Circuit’s decision would strain resources and expose states to unnecessary litigation.

The case, the dissenting circuit judges said, highlighted an issue of “exceptional importance” that had divided circuit courts and thus warranted closer consideration.

“The narrow vote by a bare majority of our court’s active judges to decline en banc review might lead a reader to infer that these judges concur in the panel majority’s holding and reasoning, despite all the arguments presented in the dissent. That would be a big mistake,” Livingston said.

“Because of our circuit’s so-called ‘tradition’ of declining en banc review, the fact that six members of our court voted to decline review does not mean that they were convinced that the panel majority is correct,” she wrote in a spirited dissent.

So far, only the Eighth Circuit has staked out a position that the CWA does not create a right to sue for benefits.

The Supreme Court rejected cert in the case in a summary order.

Pat O’Brien, executive director of the plaintiff group Adoptive and Foster Family Coalition of New York, said in a statement that litigation in Brooklyn federal court would now be able to move forward.

“We’re pleased that the Supreme Court has rejected New York’s attempt to escape its legal obligations to some of our most vulnerable children,” he said.

“Youth in foster homes deserve the same opportunity for a loving, nurturing childhood as anyone else, and no parent should ever agonize over how they can afford to support those in their care,” O’Brien said.

“Rather than continuing its 10-year, taxpayer-funded legal fight, the Cuomo administration and New York’s progressive leadership should now finally recognize the tremendous burden that these families embrace and reimburse them adequately for basic expenses.”

An attorney for the plaintiffs declined to comment on Monday, and the state attorney general’s office, which represents the state Office of Children and Family Services, did not respond to an email seeking comment on the case.

The coalition is represented by Morrison & Foerster attorneys Grant Esposito, Adam Hunt and Brian Matsui.

The case is captioned New York State Citizens’ Coalition for Children v. Poole.

Original published on January 27, 2020 on the New York Law Journal

 

FOSTER CARE REIMBURSEMENT LAWSUIT