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American Bar Association

Children's Rights Litigation

September 11, 2012

Midwest Foster Care and Adoption Association v. Kinkade (W.D. Mo. 2012)


Midwest Foster Care and Adoption Association v. Kinkade (W.D. Mo. 2012) was brought by a Missouri foster parent association alleging that rates paid to its members are too low. The plaintiffs claimed that federal law requires states to make payments that meet foster parents’ costs in caring for foster children. The district court granted the state’s motion to dismiss, holding that private plaintiffs cannot enforce the relevant provisions of federal law.

The Child Welfare Act was enacted pursuant to the Spending Clause. The violation of Spending Clause legislation does not trigger a private claim; there must be a federal right that is violated, which is distinct from a law. The three-part Blessing/Gonzaga test is applied to determine whether there is a federal right at issue:

  • there is an unambiguously conferred right for individuals, as opposed to an aggregate benefit;
  • the asserted right is not so vague and amorphous that its enforcement would strain judicial competence; and
  • the provision clearly imposes a mandatory obligation upon the states.


The court concludes that the statutory provisions at issue here lack the rights-creating, individually focused language required by Gonzaga, even though individual foster children may ultimately benefit. Moreover, the statute lacks sufficient guidance to assist the court in determining an appropriate remedy.

Keywords: litigation, children’s rights, foster care, Child Welfare Act, Spending Clause

Erik Pitchal, Boston, Massachusetts

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