Northern District of New York Holds There Is No Private Right of Action Under the Adoption Assistance and Child Welfare Act

Per Alger v. County of Albany, New York, --- F.Supp.2d ----, 2006 WL 3402923 (N.D.N.Y. Nov 21, 2006):

Defendants County of Albany, Mary Anne Morrelle, Barbara Lynch, Deborah Kelsey and Andrea Burger (collectively the "Albany County Defendants") and Defendants Roman Catholic Diocese, St. Catherine's, and St. Anne's Institute argue that there is no private cause of action under the AACWA. Plaintiff disagrees, but, other than citing to some cases, fails to explain why. Plaintiff does not specify those portions of the AACWA she believes creates a private cause of action.

In Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Supreme Court held that one provision of the AAWCA, 42 U.S.C. § 671(a)(15), did not create a private cause of action. In 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir.2003), the Eleventh Circuit similarly concluded that 42 U.S.C. §§ 675(5)(D) and (E) do not provide rights enforceable under 42 U.S.C. § 1983. In LaShawn A. by Moore v. Barry, 144 F.3d 847, 850 n. 2 (D.C.Cir.1998), the United States Court of Appeals for the District of Columbia Circuit noted that the reasoning in Suter would extend to other provisions of the AACWA. The Fourth Circuit reached a similar conclusion in White by White v. Chambliss, 112 F.3d 731 (4th Cir .1997). Courts in this District similarly have held that the AACWA does not create a private cause of action. See Ingrao v. County of Albany, N.Y., No. 1:01-CV-730, 2006 WL 2827856 (N.D.N.Y. Oct.2, 2006) (McAvoy, Senior D.J.); Polite v. Casella, 901 F.Supp. 90, 93 (N.D.N.Y.1995) (McAvoy, C.J.); McMahon v. Tompkins County Dep't of Soc. Servs., No. 95-CV-1134 (RSP/GJD), 1998 WL 187421, at *5-*7 (N.D.N.Y. Apr.14, 1998) (Pooler, D.J.). See also Daniel H. v. City of New York, 115 F.Supp.2d 423, 428 (S.D.N.Y.2000); Olivia Y. ex rel. Johnson v. Barbour, 351 F.Supp.2d 543 (S.D.Miss.2004).

In 1994, Congress enacted legislation expressly upholding the ruling in Suter insofar as the Supreme Court held that § 671(a)(15) did not create a private cause of action. See 42 U.S .C. § 1320a-2a. Significantly, as courts in the Southern District of New York and the District of New Jersey have aptly noted,

"in 1996, Congress amended 42 U.S.C. § 674 by adding subsection (d) which explicitly provides that "[a]ny individual who is aggrieved by a violation of Section 671(a)(18) of this title by a State or other entity may bring an action seeking relief from the State or other entity in any United States district court." 42 U.S .C. § 674(d)(3)(A).... That Congress ... chose to amend 42 U.S.C. § 674 to include a private right of action under [ 42 U.S.C.] § 1983 for a state or other entity's failure to comply with 42 U.S.C. § 671(a)(18), but did not include the other various elements enumerated in 42 U.S.C. § 671(a) and relied upon by Plaintiffs, is strong evidence that Congress did not intend these other various State plan elements in 42 U.S.C. § 671(a) to confer rights enforceable pursuant to § 1983."

Charlie H. v. Whitman, 83 F.Supp.2d 476, 489 (D.N.J.2000) (emphasis in original; citations omitted). See also Daniel H., 115 F.Supp.2d at 428.

This Court agrees with and adopts the reasoning in the cases set forth above. Plaintiff fails to point out what specific provisions of the AAWCA create a private cause of action and explain why they would support a private claim. Accordingly, the Court finds that, with the exception of § 671(a)(18), the AAWCA does not create a private cause of action.

Section 671(a)(18) pertains to denying persons the ability to become adoptive or foster parents, or delaying or denying a foster care placement or adoption, on the basis of race, color, or national origin. Because no such discrimination is alleged here, § 671(a)(18) is inapplicable and the claims under the AAWCA must be dismissed.