test for enforceability under section one thousand nine hundred three the plain and simple reading of the statute the facts of the case law really leads to the conclusion that congress did grant this family a private right of action to enforce their federal rights to foster care maintenance payments under forty two u s c six seventy two respectfully the district court misconstrued  and the record in the unit thing did indicate whether or not we're dealing with a case of complete legal guardianship or foster care so we really  can't address that issue can we your honor that the children are not in legal guardianship they were removed from the mother in a dependency neglect and abuse action according to the statute they they had that one of the criteria for them to receive the payments they were judged to be neglected children the cabinet then tries to find a relative a relative foster placement or if there's no relative the child is going to non relative foster care in this case the child the great aunt took the children in i got involved because i was appointed to represent the boys in originally one child she could not afford to take both and but a but it's not in  judge cut you off with the no right of action and that what has your honor that's that's right so if we agree with you that there is a private right of action under the child welfare act it goes back in order to clear up the record as to whether guardianship has been awarded and if not what the payments are to be cetera et cetera as that would be a fair reading your honor well what do you what are you asking us we're asking you to actually find that the children are entitled to the payments there is no legal guardianship but if it is a factual issue i can certainly understand it being well if it's not clear from the record we're going to have a hard time doing that i just would suggest to you so if there's some place in the record that it is clear if you'd let us know we'd certainly look at it like right now so what so i understand the question is is there anywhere in the record that shows these children are not in legal guardianship or that they are in legal either way it's just unclear we don't know the state law i don't think it's  and your position is that they're not in legal guardianship is that right may i ask the court's definition of legal guardianship well is that there's something about a permanent placement if there has been an order permanently placing them with that's had to get money adopted kids don't ok but here is they are not in legal guardianship it is in the record the record shows that they were the the judge that in the underlying d n a action granted temporary custody of custody to the great aunt and to the didn't neglectful mother would happen the mother was crying and she she had done anything on her case plan and this is very in counsel will will agree that is very unusual they they rarely do it this way but he granted joint custody to the elect honor i'll try that in regards to the would the court want to hear the arguments in terms of private enforceability or well this year argument will let you presented to the the the district court respectfully first ruled incorrectly that the statute has an aggregate focus and not an individual focus the statute says each state which any work states that have a plan must make shell his word shall make foster care made his payments to each child who qualifies i mean that couldn't be more direct than individually focused than the statute is written the court said that what the statute describes as the proper recipients that is children who have been adjudged to be abused and or poor and are put into an approved foster home the judge ruled that that those were qualifying events and therefore the statute was focused on the state and not the children but that can't be right that is that's an illogical way to look at it because that presupposed that those benefits were already out there but in fact they weren't out there this statu creates those rights there would be no foster care maintenance payments without the statute that we are relying upon the court also held that it's the potential compliance precluded this  are for closed them having a right but that's not right either that is not a fair reading of blessing and gonzaga the blessing court made a specific point of saying that clients are plaintiff should come forth and make their claim point with specificity to the statute to grants them their claim and that's exactly what our clients did to the court the case and the court that the that the district court relied upon and that counsel relies upon midwest foster care that case split decision and the key distinction there is that and our clients are the children themselves we are not foster care providers midwest dealt with and all that all the cases in the majority of which found a private ri action regardless were family care or foster care providers who were already getting benefits and wanted more even in those cases the majority of courts that have addressed the issue ruled that they had a private right of action midwest did not but our cases the children who are not real not the foster care providers although r o is she is she is the foster care provider but the children themselves are bringing this action because they're not getting the benefits that the statute demands they should get and further that case said midwest held even with substantial compliance language that alone does not foreclose a private right of action there must also be something in the statute the triggers  funding prohibition well that does not exist in the statute there is no funding prohibition in a forty two u s c six seventy two b to make the case for private enforceability very clear gonzaga dealt with institution that divulge his confidential information i'm paraphrasing again there's no there's no that was not a statute that awarded a plaintiff any benefit unlike ours which certainly does so the court in gonzaga said that's two steps removed because the plaintiff there was a student who allege that his confidentiality had been breached well the statute didn't wasn't directed to him is directed to the develop information this statute is far different each state shall make payments to each child who qualified in the key the key distinction between our case and gonzaga in blessing ended west will not midwest but guns are going blessing is that the only statutes that they can rely upon the plaintiffs in those cases was the general statute the one that directs the state not to do something or to do something are our case involves a statute that directs the state to benefit the point of and frankly there can happen to be substantial compliance when the keep part of the statute is not being followed and that is making that foster care mean is payments the other keyport part to our case is that there is no federal review mechanism and that is one of the key tests to in all the cases that find private enforceability there is no federal review mechanism so without this court's ruling in our client's favor property right and the final or final claim was that there it will protect your rights had been violated their continuing to be violated under the rational basis test there is no there is no rational basis for the secretary to discriminate against these children they all suffer the same trauma of removal from the parent they the policy of the statute is to benefit and protect vulnerable children like these to not only to provide the resources that these are poor children but also to provide permanency in the case in the cabinet that's why we have this problem they allowed the underlying courts terminate this case with temporary custody and not permanent custody and that's what the law requires thank you are my times  it please the court my name is brant urban and i'm attorney with the cabinet for health and family services apollyon the cases vicky gleason the secretary of the cabinet for help and family services i think this court's initial impulse was correct and puzzling over whether there is this is a just discipline controversy and so before i get into the blessing and saga test which i do believe the lower court correctly applied in order to make sure this is not just an academic controversy where there is a circuit split between the ninth circuit in the eighth circuit the court would do well to make sure that these parties actually have standing to bring the case now i'm not an expert on family law and then later adoption proceeding if that is necessary so in kentucky there is a two step part someone files a claim in family court or district court that a parent is being neglectful or abusive the court can have an emergency hearing and remove the children if the facts justify that or the court can wait later and have a final hearing at the final hearing the court is supposed to either find in this is consistent with the federal mandate from the very law we're talking about the family adoption protection act those laws were designed so children do not stay in foster care or grifter so the court is supposed to at that time either return the child to the parent or if the parent is not a fit parent then the court makes other arrangements typically that would be leaving the child in state custody and typically then the state would find adoptive parents often the foster parents are the ones that want to adopt now there's another alternative which the federal laws and state law requires and that is before you go out and seek a stranger to place the child in a home which are licensed and take lots of testing you can find a relative and that's what happened in this case the great aunt stepped up we think she's a wonderful human being for doing that we're not in any way denigrating her but when you're a relative you are not automatically a foster care parent foster care parents in kentucky have to have quite a bit of training and then everyone knows you're a foster care parent if you're a foster care parent if if there was a foster care parent before this court today i would argue they had standing that's what happened in all the other cases that we're talking about now at the end of the in this case there was no terminations a parental rights case but those are also supposed to be expedited you're not supposed to just leave leave them hanging open the reality of what happens however is that sometimes these parents are very sympathetic often they have addiction issues often the judge keeps giving them one more chance these parents love their children they want they can't admit they've got an addiction issue they frequently fall back into the old ways and finally the courts or the law is designed so that the court the family courts supposed to make a firm decision the case is over permanency is achieved you do not have cases in legal limbo where children ar permanent temporary custody i believe that's an oxymoron doesn't exist in that what are i think that i for one am struggling with whether or not there's has been a permanent sea determination whether these children have been discharged and we don't think it's i mean my review of the record shows that we can't tell the various things or said but we the record sealed right what do you say closed so i think that's a clear indication the family court thought the case was closed it had known that jurisdiction permanency was achieved so then the plaintiffs turned around and filed the same action in fayette circuit court asserting their federal right and of course we removed it towards  permanency has been achieved but didn't point to that form that typically is filed well i don't know if you know i'll have to take it into your dog here would know because he was the guardian and live it might take him at his word as an officer of the court that if the form wasn't filed it wasn't filed still i think that that is putting form over substance not perhaps why what could i don't know is anybody objecting to this court remanding so that somebody can open that record and this court can be convinced o the trial judge can say a permanent i would not object to that because i think it's an important case and since there's a circuit split between the the circuit now i do want to say because i don't want to infer that i think the lower court erred in any way i think the judge faithfully followed the guidance from going saga and blessing out and the precedent from this court in the case that's it's not except we don't case you were on the panel and it had to do with child collection support in some system the electronic system for setting up collecting the child support the plaintiffs allege that some private contractors had violated their rights  not remitting the money quickly enough in charging some fees i think i was thinking of the michigan case that had to do with the snap payments that we just decided which sort of tends to i think that when i read the lower court's opinion and followed it very closely he mostly relied on the new york state versus citizens coalition case out of the eastern district of new york he relied on of course the midwest case where the majority of the eighth circuit said this did not meet the blessing in gonzaga tast some of the language she quoted came from that versus roman since the case that i referred to earlier where you were on the panel and it talked about how the courts look at some of these factors all of these tests are just designed to try to discern congressional intent did congress intend to create a federal right and the reason the courts have become increasingly less likely to find a federal right is they look at it that the states need clear guidance when they take the federal money it's like a contract with a third party beneficiary the state is in type to clear guidance to know what the terms of the contract are and that we have to follow certain things so we think that after  increasingly less likely to find that pedal rights are created in that's why oftentimes you'll find the cases the aga are really not very good precedents anymore at least i would give them less weight of course blessing is still good in saga clearly instructed the lower courts how to look at those factors and give more emphasis on the clarity with which congress needs to create a right so i don't have anything else to say i wish i could i was wondering when i could just ensure that i'm correct that you are you have not identified evidence you you are very that children have been placed to permanent custody but you haven't identified evidence in the record to support that i think generally we're all piecing together but we don't we just don't know because it's sealed because i wasn't involved in the family court and it was sealed i don't want to mislead the court here's what i do know i do know that the family court would not there because at some point permanency has to be achieved at the lower cannot be that these children are permanently in this another land of neither permanent nor with the mother and so i have to sort the lower court left the record a little unclear we tried to stipulate though if you look at the stipulations those are things we all agreed on and when we did i'm pretty sure we didn't stipulate that that this was temporary custody we've we've argued all along it's permanent custody based on the inferences and what the family court did not so much as an order that says yes this is definitely permanent where the children live we have joint permanent you know it's was  temporary and we sort of gave them to mom and we gave them to the end but that was the final permanency hearing of the of the family court that's the reason we think it's permanency it can't go on forever it's just impossible the you your honor to clarify one one point we did not put we filed a motion in the district court case but it never the judge never ruled we never even took it further because she ended up taking  demotion if there was a motion to force the the cabinet to make these foster care maintenance payments to the children based on my study of the law and that was done or di court it became moot because the great aunt relented and took both children that's why i was trying to get those children together so we just let it go on and then eventually did close the case and that was it but this issue still lived this family was still in frankly your honor this is much bigger than this just these children i deal with children all the time going to relative care and they're not getting the payments that they used to get before two thousand and thirteen stay kentucky did take the optional  p care which counsel put a lot of time in his briefs we never asked for kinship care kentucky ended that in two thousand and thirteen so this issue really income up until recently and since i've been practicing law as a guardian ad li um i will say also whether there's and there was temporary custody i know you you need more proof than that but it was temporary custody was not permanent and but beyond that this is one of those issues that it's incapable it's an issue of capable of repetition but impossible to be resolved so you can still rule on the principle of law that this family has a private right of action to these payments and then sure if we need to get some more evidence evidence to show that they're still in temporary custody they will continue to get those payments the very key point is that the policy considerations support the family because the whole child where for ap just for one minute yes  if they if we determine if the court confirms for us what's worse if we're still a quandary here and i can't speak for payment but if the court is i'm convinced that it's permanent once it's permanent you agree that your children get no money these children get no money but the principle is that because this these children could be ripped what happens a lot of times the family dynamics the the custodial relationship it's permanent there should've been a permanent custody hearing and proper notice given to the parents and procedures kentucky's rules of civil procedure is followed and they have a permanent custody hearing and that custodian is given permanent custody and