In re K.H.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-469


In re K.H., Juvenile                         Supreme Court

                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 3, Washington Circuit

                                             May Term, 1990


Stephen B. Martin, J.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane,
  Assistant Attorney General, Waterbury, for plaintiff-appellee

Michael Rose, St. Albans, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.


     ALLEN, C.J.   The mother of K.H. appeals from the juvenile court's
order terminating her parental rights and transferring legal custody and
guardianship of K.H. to the Commissioner of Social and Rehabilitation
Services (SRS) without limitation as to adoption.  We affirm.
     SRS has had legal custody of K.H. since December, 1985.  At that time,
the district court found both the mother, then aged seventeen, and her
eighteen-month-old child to be children in need of supervision (CHINS).  SRS
placed K.H. and the mother in the same foster home in order to keep the
family together while the mother learned parenting skills and found
employment.  The mother left the foster home upon turning eighteen.  K.H.,
however, remained in the care of the foster parents who seek to adopt the
child, now five years of age.
     The court conducted a dispositional review in May, 1987 and continued
SRS's custody of K.H.  In November, 1988 SRS filed a petition to terminate
the mother's parental rights, citing the mother's inability to resume
parental responsibilities within a reasonable time and K.H.'s need for
stability and permanence.  The court granted SRS's petition, and the mother
appealed.
     The mother argues that the court erred by not making findings on the
question of whether SRS made reasonable efforts to reunite mother and child
as required by 42 U.S.C. {{ 670-79.  We disagree.
     Congress made federal funds available for foster care and adoption
assistance under Title IV-E with passage of the Adoption Assistance and
Child Welfare Act of 1980 (AAA). 42 U.S.C. {{ 620-29, 670-79.  To qualify
for the funding it receives, SRS must follow the guidelines prescribed by
the AAA.  Section 671(a) provides in pertinent part:
         In order for a State to be eligible for payments . . .
         it shall have a plan approved by the Secretary which  --

         . . . .

           (15) . . . provides that, in each case, reasonable
         efforts will be made (A) prior to the placement of a
         child in foster care, to prevent or eliminate the need
         for removal of the child from his home, and (B) to make
         it possible for the child to return to his home . . . .

     With the receipt of federal funds, the mother argues that the State has
undertaken a duty to make reasonable efforts to reunify separated children
with their natural parents, a duty which the federal government may
enforce (FN1) and which bestows corollary rights on private parties as well.  In
essence, the mother contends that the AAA creates an implied right of action
which she may assert in a state juvenile court proceeding, and upon which
the court must make findings.
     The mother primarily relies on In re Burns, 519 A.2d 638 (Del. 1986),
in which the Delaware Supreme Court reversed a termination of parental
rights order because of the failure of the Delaware Division of Child And
Protective Services (DCPS) and the Children's Bureau to provide adequate
reunification services to the mother.  The court based its decision on
Delaware law requiring preplacement and preventative services and on the
AAA, including that portion cited by the mother here, 42 U.S.C. {
671(a)(15).  According to the court, both Delaware and the AAA imposed
affirmative obligations on DCPS and the Children's Bureau to make all
reasonable efforts to prevent a child's removal from its mother and to
reunify the family after separation.  Burns, 519 A.2d  at 648.  The court
charged the family court with the responsibility to ensure meaningful
compliance with the AAA.  In termination of parental rights cases, the
Delaware Supreme Court directed the family court to make appropriate
findings of fact and conclusions of law regarding the State's bona fide
efforts to satisfy its own statutory obligations.  Id. at 649.
     We decline to follow the approach of the Delaware Supreme Court.  We
have recently had occasion to discuss the application of the AAA to juvenile
court proceedings in In re J.S.,     Vt.    , 571 A.2d 658 (1989).  In that
case, the juvenile sought to prevent a change of placement from a foster
home to a staff-secure residential treatment center.  The juvenile moved for
a protective order and argued that the twelve-month case plan review
conducted by SRS failed to satisfy the administrative review requirements
mandated by 42 U.S.C. { 675(6).  We focused on the limited jurisdiction of
the juvenile court and did not reach the question of whether the twelve-
month review met the requirements of the AAA.  Id. at    , 571 A.2d  at 661.
This case warrants the same approach.  "The juvenile court exercises special
and very limited statutory powers.  Generally, unless statutory authority
exists for a particular procedure, the juvenile court lacks the authority to
employ it."  Id. (citation omitted).  The court in Burns did not identify
the origin of the family court's authority to enforce the AAA.  We will not
simply assume it exists and cannot find the source of such authority in the
juvenile code. (FN2)  The juvenile court was without jurisdiction in the context
of a termination hearing to consider the State's compliance with the
reunification requirements of 42 U.S.C. { 671(a)(15).  Therefore, findings
on this issue were not required and the court did not err by declining to
issue them.
     Affirmed.
                                        FOR THE COURT:




                                        Chief Justice





FN1.    The Secretary of the Department of Health and Human Services may
withhold funds if the State does not comply with the provisions of { 671(a)
or substantially fails to comply with the provisions of the plan.  42 U.S.C.
{ 671(b).


FN2.   The Burns decision also does not explain how the mother could raise
claims based on the State's failure to comply with the federal act.  As a
preliminary matter, one bringing a claim under the AAA must establish that
the act contains an implied private right of action or creates rights
enforceable under 42 U.S.C. { 1983.  See Boatowners and Tenants Ass'n v.
Port of Seattle, 716 F.2d 669, 674 (9th Cir. 1983)(one asserting a federal
statutory right bears the burden to make an affirmative showing of
congressional intent to create a private right of action); B.H. v. Johnson,
715 F. Supp. 1387, 1400 (N.D.Ill. 1989)(plaintiffs asserting cause of action
under 42 U.S.C. { 1983 bore the burden to prove that Congress intended to
create enforceable rights within the AAA as a condition of federal funding).
We express no opinion regarding whether the AAA creates rights enforceable
under either of these theories in contexts other than juvenile court.