Lipscomb By and Through DeFehr v. Simmons

Page 1374

962 F.2d 1374

60 USLW 2697

Sheri LIPSCOMB, By and Through Her Next Friend, Carolyn DeFEHR; Autumn Scalf, & William Scalf, By and Through Their Next Friend Gloria Self, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. Dan SIMMONS, Individually and in His Official Capacity as Acting Director, Department of Human Resources of the State of Oregon, & Jess Armas, Individually and in His Official Capacity as Acting Assistant Director, Department of Human Resources of the State of Oregon and Acting Administrator Children's Services Division, Department of Human Resources of the State of Oregon, Defendants-Appellees.

No. 87-4079.

United States Court of Appeals Ninth Circuit.

Argued En Banc and Submitted

Nov. 15, 1990.

Decided April 27, 1992.

Emily Simon and Mark Kramer, Esqs., Kramer & Fifthian-Barrett, Portland, Ore., for plaintiffs-appellants.

Dave Frohnmayer, Atty. Gen. of the State of Ore., Virginia L. Linder, Sol. Gen., Rives Kistler, Asst. Atty. Gen., Salem, Ore., for defendants-appellees.

Stephanie Wald, Supervising Deputy Atty. Gen., San Francisco, Cal., for amicus California Dept. of Social Services.

Darryl L. Hamm, Morrison & Foerster, San Francisco, Cal., for amici L.W., R.S., S.M., J.R., J.R., A.T., S.W. and J.C., et al.

Appeal from the United States District Court for the District of Oregon.

Before: GOODWIN, TANG, FLETCHER, POOLE, D.W. NELSON, NORRIS, BEEZER, BRUNETTI, KOZINSKI, O'SCANNLAIN, and RYMER, Circuit Judges.

GOODWIN, Circuit Judge:

Oregon provides state-funded foster care benefits to all children placed by the state with non-relatives, but it does not provide state-funded foster care for children placed with relatives. We consider whether Oregon's attempt to stretch its foster care dollar violates the United States Constitution. We conclude that it does not.

I. BACKGROUND

Class plaintiffs, ¹ challenging the constitutionality of the Oregon system for state funding of foster home care in certain juvenile court placements, appeal a summary judgment order upholding the statutory scheme. A three-judge panel of this court reversed. Lipscomb v. Simmons, 884 F.2d 1242 (1989). Pursuant to Ninth Circuit Rule 35.3, the case was taken en banc. 907 F.2d 114 (9th Cir.1990).

Under Oregon law, when a child has been found to be within the jurisdiction of the juvenile court because of parental abuse or neglect, the court may make the child a ward of the court and may place the child in the legal custody of the Children's Services Division ("CSD") for care, supervision and temporary placement in a foster home. See Or.Rev.Stat. § 419.507(1)(b). Oregon participates in the federal Foster Care Maintenance Payments program, Title IV-E of the Social Security Act, 42 U.S.C. §§ 670-676. Federally funded foster care is administered under federal regulations which require equal payments to relatives and non-relatives in foster care placements that qualify for Title IV-E payments. See Miller v. Youakim, 440 U.S. 125, 126-28, 99 S.Ct. 957, 959-60, 59 L.Ed.2d 194 (1979). Oregon has a separate system for funding the foster care of children who are not eligible under Title IV-E. ² Under this program, the State assists only children who are placed with foster parents who are not related to them. See Or.Rev.Stat. § 418.625(2). Only the state-funded child care regulations which apply to children not eligible for Title IV-E money are challenged in this case. ³

The district court ruled on stipulated facts and cross motions for summary judgment. The relevant facts are not in dispute. The district court divided the class plaintiffs into two sub-classes:

(1) All children who have been or will be temporarily in the custody of Children's Service Division, who have been or will be placed in foster care with relatives, and who have been or will be denied foster care benefits because of defendants' policy and practice of not providing state-funded foster care benefits to children placed with relatives; and

(2) All children who have been or will be temporarily in the custody of the Children's Service Division and who have not been or will not be placed in foster care with relatives, or whose placement with relatives has been or will be terminated, because of defendants' policy and practice of not paying state-funded foster care benefits to children placed with relatives.

II. DISCUSSION

The distinction between these two sub-classes is important to the analysis. The children in sub-class (1) do not claim that their relatives will care for them only if they get state assistance. Rather they claim only that they are entitled to state funding even though their relatives are both willing and financially able to care for them. Because members of the first sub-class will continue to have relatives as foster parents, their claim of constitutional injury is difficult to comprehend.

In contrast, the children in sub-class (2) are those who will be denied placements with relatives solely because of the Oregon policy of not providing foster care payments and benefits. In other words, the Oregon policy denies children in this sub-class opportunities for placements with two different categories of relatives: (1) relatives who have the financial resources to care for the children but are unwilling to do so without a state subsidy, and (2) relatives who are willing to care for the children but are financially incapable of doing so without the payments at issue here.

What the case boils down to is whether, in these circumstances, the United States Constitution requires the State of Oregon to fund foster placements with all relatives if it chooses to fund all foster placements with non-relatives. The social cost of Oregon's policy is to deny some children the opportunity to be placed in the homes of relatives who are financially able but unwilling to care for the children without state assistance or who are willing but financially unable to provide care without state assistance, and also to deny payments to children who are nonetheless placed in the homes of relatives.

The social benefit of Oregon's policy is that it saves an estimated $4 million biannually in money Oregon need not spend to provide foster care for those children being cared for by relatives who are both financially able and willing to provide such care without state support. ⁴ Oregon argues that nothing in the Constitution prevents it from taking advantage of those financially able and generous relatives who are willing to provide foster care under the existing policy in order to save that $4 million and spend it on foster care benefits for children placed with non-relatives. According to Oregon, spending those savings on foster care payments to non-relatives expands the pool of non-relatives willing and able to provide foster care. It also increases the amount of money available to each child placed with a non-relative.

Plaintiffs conceded in the district court that social welfare legislation allocating funds requires some classification of potential recipients. The case was briefed and argued in the district court on the sole question whether the state's attempt to manage its scarce child welfare funds violated the equal protection clause of the Fourteenth Amendment. No effort appears to have been made to resolve the question on statutory grounds, as was the case in Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979). ⁵ On appeal the parties again avoided statutory questions and argued the case as a constitutional equal protection claim.

Under equal protection, state social and economic legislation ordinarily is entitled to broad deference from the federal courts and will be sustained so long as it is rationally related to a legitimate state interest. See, e.g., Exxon Corp. v. Eagerton, 462 U.S. 176, 195-96, 103 S.Ct. 2296, 2308, 76 L.Ed.2d 497 (1983). As the Supreme Court explained in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970):

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911).

....

[T]he intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly, [397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ]. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.

Id., 397 U.S. at 485-87, 90 S.Ct. at 1161-63 (citations omitted). Appellants argue in the alternative that the statute either fails the usual rationality review or triggers heightened scrutiny which it is unable to satisfy.

A. The Case for Heightened Scrutiny

Legislative classifications are subject to a heightened standard of scrutiny when they disadvantage a "suspect" or "quasi-suspect" class or burden the exercise of fundamental rights independently protected against governmental interference. See, e.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985).

1. Suspect classifications

Oregon's policy of excluding relatives from state foster care payments, say the plaintiffs, denies the children as well as their relatives equal protection of the laws. Plaintiffs invite us to recognize a new suspect class for purposes of equal protection analysis: children who have been removed from abusive...