A Case for Revisiting the Child Welfare Act

Abstract

In 2017, in D.O. v. Glisson, the U.S. Circuit Court of Appeals for the Sixth Circuit held that the Child Welfare Act of 1980 (the “Act”) creates a privately enforceable right to foster care maintenance payments and that this right could be enforced by an individual through the use of § 1983. In a similar case, Midwest Foster Care and Adoption Ass’n v. Kincade, the Eighth Circuit held that the Act does not create a privately enforceable right and thus, could not be enforced through the use of 42 U.S.C. § 1983. This Comment argues that the Eighth Circuit’s determination is correct with respect to the factors presented by the Supreme Court in 1997, in Blessing v. Freestone. It is likely that Congress did not intend for the Act to have no means of enforcement; therefore, the Act needs to be amended.