July 01, 2017

Sixth Circuit Case Opens Door to Equal Pay and Support for Relative Caregivers

Heidi Redlich Epstein and Elizabeth Christy

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Providing relative caregivers the same financial benefits and supports as nonrelative foster caregivers is the focus of ongoing federal litigation. The litigation addresses the equitable treatment of relatives who care for children in the child welfare system. Most children in foster care are placed with nonrelatives under licensing standards and policies developed to ensure the safety of nonrelated caregivers (see sidebar on the Model Foster Family Home Licensing Standards).

Relatives often have problems qualifying for foster home licenses for reasons such as limited physical space within the home or inadequate sleeping space. Thus, many states will place the child in the relative’s home but not pay the relative. For the first time, a federal court is examining whether it is legal to distinguish payment of a home based solely on the relationship of the caregiver to the child.

Kentucky Court Action

In 2013, two children were placed by a Kentucky family court in the home of their great aunt. The children were transferred from a nonrelative foster home to the great aunt’s care. However, the aunt was not given the same financial benefits, supports, and services to care for the children as the nonrelative caregivers.

The aunt brought an action in state court against the Secretary for Kentucky’s Cabinet for Health and Family Services. She alleged (1) the federal Adoption Assistance and Child Welfare Act of 1980 (CWA) required the state to provide maintenance payments to her on behalf of the two children, and (2) failure to do so violated the Fourteenth Amendment Equal Protection and Due Process Clauses.

Federal Court Action

The case was removed from state court to the District Court for the Eastern District of Kentucky. The Secretary moved for summary judgment, arguing that CWA does not give plaintiffs a private right of enforcement under § 1983 and that the distinction between relative and nonrelative caregivers has a rational basis. The district court granted the motion and the plaintiffs appealed.

Enforceable Right under CWA

The Sixth Circuit, in D.O. v. Glisson,1 reversed and remanded. The Sixth Circuit held that CWA does give foster care providers a privately enforceable right under § 1983. The court reasoned that (1) the Act uses mandatory language and focuses on individual recipients, thereby evidencing congressional intent to confer a benefit on plaintiffs; (2) it contains sufficiently clear legal standards that courts can apply without making political judgments; and (3) it unambiguously imposes a binding obligation on states. The court further reasoned that Congress neither explicitly nor implicitly foreclosed enforcement of the right to maintenance payments.

Legality of Relative Caregiver Distinction

The Sixth Circuit also addressed whether a relative caregiver is entitled to a § 1983 right under the CWA. The Sixth Circuit held that under the meaning of the CWA the great aunt provided the plaintiff children an approved foster family home, and that caregiver categorical distinctions based on the relationship to the child were impermissible under federal law.
Before placement with their aunt, Kentucky’s Cabinet for Health and Family Services (the agency) conducted a standard home evaluation and criminal background check. Plaintiffs argued that because the agency took those measures before placing the children with their aunt, the aunt was considered an “approved foster care provider” under CWA. The court held that “[t]o the extent the Cabinet’s failure to make maintenance payments turns on the distinction between relative and nonrelative foster care providers, it plainly violates federal law.”2 The court reasoned that CWA contemplates payment for two categories of foster families:

  1. Licensed foster families—includes those (usually nonrelative) caregivers that satisfy all state licensing standards, and
  2. Approved foster families—includes relative caregivers approved through a modified process that allows states to waive nonsafety standards case-by-case for children in relative foster family homes.3

The Sixth Circuit concluded the aunt is entitled to foster payments even though she was not fully licensed because of the safety assessment conducted before placement.4 The Sixth Circuit remanded to the district court to determine whether Kentucky’s Cabinet for Health and Family Services maintains responsibility for the children’s placement and care. If so, then the district court would need to award foster care maintenance payments to the aunt.

Eighth Circuit Case

In contrast to the Sixth Circuit’s ruling, the Eighth Circuit in Midwest Foster Care and Adoption Ass’n v. Kincade,5 held the CWA does not give caregivers a private right of enforcement under 42 U.S.C. § 1983. In reaching their holdings, both courts applied the same three-part test created by the Supreme Court in Blessing v. Freestone,6 however their reasoning differed in three ways.

Federalism principles

First, the Eighth Circuit invoked federalism principles. The reliance on federalism shows the court’s reluctance to find a federal right enforceable against a state actor under § 1983, absent a clear congressional articulation of such a possibility. The court felt a less stringent application of the Blessing test would amount to an unconstitutional infringement on states’ rights by federal courts without first providing the states sufficient notice of potential liability. The Sixth Circuit did not mention federalism principles.

Purpose of CWA

Second, the Eighth Circuit relied extensively on the purposes of CWA as a whole to inform its interpretation of the specific sections alleged to give rise to a § 1983 private right of enforcement. The Eighth Circuit referred often to the fact that CWA is Spending Clause legislation, that it focuses on states as the subject, and that it sets minimum requirements states must meet to qualify for federal matching funds. This framing of the analysis minimizes any reference to individual caregivers within the CWA and makes it easier to dismiss the claim that the act grants caregivers a right.

Conversely, the Sixth Circuit opinion gives more attention to the language within each provision and largely rejects the argument that the sections should be interpreted within the context of the overall Act. By adopting a narrower focus, the Sixth Circuit gave greater weight to the individual caregivers and other language that favored finding an individual right enforceable under § 1983.

Gonzaga Case

Third, the Sixth and Eighth Circuits cite Gonzaga Univ. v. Doe,7 to support their conclusions. However, the Eighth Circuit relied less on the specific facts of Gonzaga and more on the factors the court applied in its reasoning. Whereas the Sixth Circuit relied more heavily on the facts of Gonzaga and distinguished them from the facts of D.O.



The District Court for the Eastern District of Kentucky has not heard this case and Kentucky is considering filing a petition for writ of certiorari to the U.S. Supreme Court. The impact of this case may be far-reaching for thousands of unpaid kinship caregivers. To have a U.S. Supreme Court ruling that kinship caregivers are entitled to this benefit and that they cannot be treated differently based on their previous relationship to the child is significant.

About half of the states currently do not allow unlicensed caregivers to care for children in their custody, but states that allow this practice would have to pay these caregivers under the ruling. There are concerns that states will respond by diverting children to the care of kin outside the child welfare system or not place children with kin at all. We will have to wait and see what the court rules.

Heidi Redlich Epstein, JD, MSW, is the director of kinship policy and assistant director of state projects at the ABA Center on Children and the Law. Heidi helped develop and currently co-manages the Grandfamilies State Law and Policy Resource Center at www.grandfamilies.org in partnership with Casey Family Programs and Generations United. Her other kinship efforts include training and technical assistance on kinship issues, and helping develop the National Model Family Foster Home Licensing Standards.

Elizabeth Christy, recently graduated from Arizona State University’s Sandra Day O’Connor College of Law. She served as a legal fellow with the ABA Center on Children and the Law in the spring 2017, focusing on immigration, kinship, and child welfare issues. Soon she will be joining the firm Asbey, Watkins & Deisel, Flagstaff, AZ.


Model Foster Family Home Licensing Standards

Until recently, the federal requirement under the Social Security Act, 42 U.S.C. § 671(a)(10)(A), that foster home licensing standards be "reasonably in accord with recommended standards of national organizations" was difficult to achieve as no such standards existed. In 2014, the ABA Center on Children and the Law, Generations United, the National Association for Regulatory Administration (NARA) and the Annie E. Casey Foundation, created the first set of comprehensive Model Foster Family Home Licensing Standards, available for free download at www.grandfamilies.org. The standards help ensure children in foster care are safe and establish a reasonable, common-sense path to enable more relatives and nonrelated caregivers to become licensed foster parents. The partners are working to encourage states to assess and possibly align their own family foster home licensing standards with the Model Standards. 


1. 847 F.3d 374 (6th Cir. 2017).
2. D.O., 847 F.3d 383.
3. Ibid., 382-383.
4. Ibid., 376.
5. 712 F.3d 1190 (8th Cir. 2013).
6. 520 U.S. 329 (1997).
7. 536 U.S. 273 (2002) (holding the Family Educational Rights and Privacy Act does not grant students a privacy right in their educational records).