“On Behalf of Each Child”: Section 1983 Enforcement of the Right to Foster Care Maintenance Payments under the Child Welfare Act

In 1980, Congress passed the Adoption Assistance and Child Welfare Act (CWA). As a piece of Spending Clause legislation, the CWA imposes upon states numerous conditions in exchange for federal funding. One of these conditions is that states must make foster care maintenance payments to foster caregivers “on behalf of each child” who qualifies for assistance. Because the CWA does not include a federal mechanism for reviewing individual claims, foster caregivers seeking to compel their state to make adequate foster care maintenance payments have resorted to suing under 42 USC § 1983. However, since the 1980s, the Supreme Court has narrowed the scope of § 1983, holding that private individuals may enforce only constitutional and statutory rights, not benefits, under § 1983. Due to ambiguity in the Court’s opinions, a circuit split has emerged over whether a foster caregiver may enforce the right to foster care maintenance payments on behalf of the foster child under his or her care. This Comment argues that the CWA creates an enforceable right to foster care maintenance payments under § 1983 by analyzing the CWA’s text and structure and by drawing on the context of the Act’s enactment and subsequent legislative history. The circuit courts have overlooked several aspects of the CWA’s text and structure that indicate Congress’s intent to create an enforceable right. Moreover, the circuit courts have almost exclusively analyzed the text of the CWA, ignoring aspects of the CWA’s enactment and later pieces of legislative history that provide further signs of congressional intent to create an enforceable right. Lastly, this Comment concludes that § 1983 enforcement of foster care maintenance payments furthers the legislative purpose of the CWA. By ensuring that foster caregivers are adequately supported to provide care throughout the entire duration of a child’s placement in foster care, § 1983 enforcement reduces the likelihood that a foster child is shuffled between foster homes for indefinite periods of time