Full opinion text
MEMORANDUM AND ORDER SEAR, District Judge. This civil rights action was filed February 25, 1986 on behalf of children in foster care under the supervision of the Louisiana Department of Health and Human Resources (“DHHR”). An amended complaint was filed on April 28,1986. Plaintiff children challenged the adequacy of Louisiana’s child welfare system under the Adoption Assistance and Child Welfare Act of 1980 (“Child Welfare Act”), 42 U.S.C. §§ 620 et seq. & §§ 670 et seq., and the United States Constitution. Jurisdiction arises under 28 U.S.C. §§ 1343(a)(3), 2201 and 2202. Venue is proper in the Eastern District of Louisiana. The original plaintiffs were fifteen children, suing on their own behalf and on behalf of a putative class of all others similarly situated. Named as original defendants were then governor of Louisiana Edwin Edwards, Secretary of DHHR Sandra L. Robinson, Assistant Secretary of DHHR for the Office of Human Development Wayne C. Heap, and Under Secretary of DHHR Melvin Meyers, Jr. Claims against these defendants in their individual capacities were subsequently dismissed. Current holders of these State positions have been substituted as defendants: Governor Charles “Buddy” Roemer, Secretary of the Department of Social Services (“DSS”) May Nelson, and Assistant Secretary of DSS for the Office of Community Services (“OCS”) Brenda L. Kelley. Causes of action were originally pursued for money damages and injunctive and declaratory relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 & 2202. On January 13, 1989, plaintiffs dismissed their damage claims. Plaintiffs allege the existence and violation of a variety of rights created by the Child Welfare Act and enforceable in a § 1983 action. Plaintiffs also allege deprivations of protected liberty and property interests and substantive due process in violation of the Fourteenth Amendment of the United States Constitution. Trial first commenced on March 6, 1989. Prior to trial nine plaintiffs were dismissed because they were no longer in State custody. Following two days of testimony, I expressed the belief that plaintiffs had established prima facie violations of law. At that time, it was apparent to me that Dr. Jeanne Hunzeker, Associate Dean of the School of Social Work at Southern University of New Orleans, plaintiff’s expert in child care, and assistant secretary Kelley each wanted to provide the finest child care plan for Louisiana’s children that could be developed, applying well-accepted social work policies and practices within the framework of applicable State and Federal statutes and regulations. I recognized that the parties’ experts were in a far better position than I or anyone selected by me to draft a plan that would be within the law and in keeping with the best professional practices. I therefore encouraged the parties to resolve their differences by negotiating a plan for the improvement of the Louisiana child welfare system. The parties agreed. Consequently, trial was continued indefinitely to enable Dr. Hunzeker and Ms. Kelley to develop the plan. Prior to and during the trial and in response to plaintiffs requests for class certification, the State stipulated that any remedies provided as a result of this litigation would extend not only to plaintiffs but also to all those similarly situated and all those at risk of being placed in foster care. The stipulation was extended to the negotiated plan as well. Negotiations between the parties were conducted solely by the designated experts, without interference of counsel or me. However, the experts kept me informed of the progress of their weekly meetings. Following completion of the plan, copies were given to the parties for comment and then returned to the experts for inclusion of those comments which the experts considered appropriate. On October 27, 1989, the Proposed Plan for Improvement of the Louisiana Child Welfare System (the “Plan”) was submitted to the court, with revisions reflecting the comments of plaintiffs and defendants’ counsel that the experts believed conformed to the standard under which this Plan was developed. A copy of this revision was furnished to the parties and they were ordered to show cause on November 8,1989 why the Plan should not be adopted by the Court. Plaintiffs filed a variety of objections to the Plan, and asked that I modify it accordingly. Most of the objections related to a failure to provide “timelines” when none were required by statute or regulation and, in the opinion of the experts, were not in the best interest of the Plan. Defendants were essentially satisfied to accept the Plan as proposed, although they considered that it imposed on them obligations that went beyond the requirements of federal statutory and constitutional law. The Plan was discussed among the parties and me at a status conference in chambers, but agreement could not be reached. Subsequently, after conferring with the experts and addressing plaintiffs’ objections and defendants’ arguments in opposition to plaintiffs’ objections, I adopted the Plan. During status conferences with the experts and Secretary Nelson prior to the hearing and adoption of the Plan, I learned that the Secretary already had obtained from the State additional funds for her department and had begun to implement policies and procedures that were to be included in the Plan. I communicated this fact to counsel during a status conference with them. In adopting the Plan, I noted, “I am impressed by the dedication of the parties and the experts to the reform of Louisiana’s child welfare system. I am also impressed with the significant gains that have been made since the filing of this action. From the beginning, I was convinced that much could be accomplished in a spirit of cooperation. Although the parties did not completely resolve their differences, the essential structure of Louisiana’s child welfare system for the foreseeable future has been put into place.” In the order adopting the plan, I retained jurisdiction to oversee the Plan’s implementation. Subsequently, defendants filed a motion to amend the January 25, 1990 Order adopting the Plan. Defendants’ sole concern was with the court’s repetition of the defendants’ earlier statement that they “do not object to the Plan as written.” Defendants were concerned that the court’s repetition of their statement in its order might preclude them, should disputes subsequently arise, from arguing as they had all along that areas of the Plan exceeded federal requirements. The defendants expressed that they had no intention to appeal the order adopting the Plan. Plaintiffs then filed their own motion requesting that I alter or amend the order and hold a hearing at which evidence could be introduced in support of explicit findings of fact and conclusions of law. Plaintiffs insisted that there be some mechanism that would enable them to enforce compliance with the Plan through the court’s contempt power, despite my constant admonition and the clear statement in the order that the court would retain jurisdiction to oversee implementation of the Plan. After conference with the parties, I vacated the order adopting the Plan and ordered the action returned to the trial calendar. I wrote: “Based upon these motions, it is obvious that the plan prepared by the parties’ experts does not provide a mutually satisfactory resolution to the alleged problems existing in Louisiana’s Child Welfare system.” By two amendments to the complaint filed in May and July 1990 eight new plaintiffs were added, bringing their number to IB. Prior to the commencement of the second trial, two plaintiffs were dismissed because they were no longer in State custody. The second trial began November 19, 1990, and lasted five days. Plaintiffs rested their case. Defendants began to present their case but were unable to complete it because a key defense expert witness was called to active military service in the Persian Gulf war without any prior notice. It was not possible under the circumstances of his mobilization even to take his deposition. A recess was granted to enable the defendants to retain another expert, to afford the expert an opportunity to prepare for trial and to allow plaintiffs to depose him. Trial was scheduled to resume January 22, 1991. One month prior to this date, plaintiffs filed a motion to compel the production of documents not specifically related to the condition of the named plaintiffs, but asserted to be relevant to whether or not the violations plaintiffs allege are likely to recur. Plaintiffs argued that likelihood to recur would be an appropriate issue for presentation of a rebuttal case after defendants rested. I referred the motion to compel to United States magistrate judge Ronald A. Fonseca, who ordered the documents produced. Defendants then filed a motion to review and set aside the Magistrate Judge’s order, which motion I took under advisement until the close of defendants’ case. Upon the request of defendants and the agreement of plaintiffs, the date scheduled for the resumption of trial was continued two months. After defendants’ new expert testified, the defendants rested. I ordered the parties to submit memoranda on the issue of whether or not plaintiffs were entitled to present rebuttal evidence. Subsequently, I ruled that plaintiffs’ proffered evidence was not rebuttal, and granted defendants’ motion to review and set aside the magistrate judge’s order compelling the production of the documents. I indicated that reasons for these rulings would be assigned at the time of the decision on plaintiffs’ claims. I. Asserted Statutory Violations Plaintiffs allege the existence and violation of a variety of rights which they claim arise from the Adoption Assistance and Child Welfare Act of 1980 (the “Act”). The Adoption Assistance and Child Welfare Act of 1980 The Act creates a cooperative federal-state child welfare and assistance program. The federal government provides money to States, to assist the States in providing financial assistance, rehabilitation, and other services to needy dependent children. Participation in the program is voluntary; yet, if a State chooses to participate, it must comply with certain requirements in the Act as well as regulations promulgated by the Secretary of Health and Human Resources. The Act is divided into five parts, A through E. Each part focuses on a different need of dependent children and sets forth criteria to qualify for federal assistance under that part. Plaintiffs allege violations of section 627 in Part B and of section 671 in Part E. Part B: Part B provides federal financial aid to States for establishing and strengthening child welfare services. These services are designed to promote the welfare of disadvantaged children, prevent and remedy child abuse and neglect, prevent family breakups, make appropriate adoptive placements, and provide adequate care for foster children. To be eligible for Part B funds, a State must adopt a plan that meets the requirements of section 622. In addition to these funds, section 627 of Part B provides for incentive funds if a State satisfies additional requirements which focus on the care and administration of foster children. These requirements include conducting an inventory of children in foster care under the supervision of the State, establishing a periodic case review system for each child, establishing a statewide information system that includes the status and goals for foster children, and establishing a service program designed to reunify families or place children in adoptive or other permanent placements. Part E: Part E provides federal aid to States for providing foster care maintenance and adoption assistance. To receive federal aid under Part E, a State must have a plan that provides for reporting child abuse and neglect to law enforcement officials or courts; establishing and applying State standards for foster care homes and institutions; exerting reasonable efforts to prevent the placement of children in foster care and to reunify them with their families; and formulating case plans and implementing a case review system for each child receiving foster care maintenance payments. Plaintiffs allege the existence and violation of certain statutory rights arising from requirements the Act imposes on a State for receiving federal assistance, in particular, Part B incentive funds and Part E funds. Plaintiffs assert that they have a right (1) to a case plan that tracks the child’s placement and receipt of services; (2) to a review of the case plan every six months; (3) to a reliable statewide information system; (4) to reasonable efforts exerted by the State to prevent their placement in foster care and to reunite them with their families; (5) to a plan for achieving a permanent placement; (6) to a placement in the least restrictive and most family-like setting; and (7) to placement in a foster home or institution established and maintained in accord with nationally recognized standards. I find that plaintiffs are not entitled to relief for alleged violations of Parts B and E of the Act because the Act does not create a right enforceable under § 1983. Additionally, the Act does not create a private right of action for enforcing its provisions. A. No Enforceable Right Under Section 1983 “Section 1983 provides a cause of action for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States,” including violations of federal statutes. Yet, an individual does not have a cause of action for a violation of a federal statute when the statute does not create an enforceable right within the meaning of section 1983. This is so because “ ‘[section 1983 speaks in terms of “rights, privileges and immunities,” not violations of federal law.’ ” Thus, for plaintiffs to have a cause of action for violations of the Act, it must create an enforceable right within the meaning of section 1983. For a statute to create an enforceable right under section 1983, the Congress must have intended for the statute to benefit the putative plaintiffs and the statute must create a binding obligation on the recipient, rather than merely express a congressional preference. In addition, the statute must not be so vague or amorphous to evade enforcement by the courts. 1. Benefit to the putative plaintiffs The statutory purpose of the Part B funds is to assist the States to provide child welfare services. To achieve this purpose, Congress appropriates money to the States for funding these services. The Secretary of ITHS remits these funds directly to the State. Under certain circumstances, section 627 of Part B provides additional federal funds to a State, known as incentive funds. To qualify for incentive funds, the State must have implemented the additional programs required in that section, prior to the Secretary’s allocation to the States of the Part B funds appropriated for that year. Once a state has qualified for section 627 incentive funds in a given year, discontinuance of the qualifying programs has no consequence during the year. The Secretary cannot withhold funds due or demand return of funds received by the State during that year. For a State to receive Part E funds, it must satisfy still other specified requirements. The State must submit for approval a plan addressing certain topics to the Secretary and must comply substantially with its plan. If the State meets these requirements, it directly receives and benefits from the federal funds. In part, the State uses these funds to support the services outlined in the plan, such as placing eligible children. A State’s failure to adopt a plan and/or substantially comply with the plan results in forfeiture or reduction of the amount of federal funds received. The services and programs supported by Part B incentive funds and Part E funds do not benefit the putative plaintiffs. The Part B incentive funds serve to provide the mechanism for administering a foster care system. In particular, to receive Part B incentive funds the State must operate “a statewide information system from which the status, demographic characteristics, location, and goals for the placement” of children in foster care can readily be determined. This information system clearly serves only as an administrative tool and is not intended as a benefit to the putative plaintiffs. Thus, plaintiffs have no enforceable right to an information system. Similarly, some of the Part E funds support only administrative procedures, such as services employed in placing the children in the program. While some of these additional programs and services ultimately may benefit the putative plaintiffs, i.e., the foster children, the benefit is indirect. For example, the case plan and review procedures are of particular importance to plaintiffs, yet these procedures simply serve as an oversight mechanism to monitor the child’s care and placement while in state custody. The federal funds are not used to feed, clothe, shelter, or satisfy any other need of plaintiffs. Moreover, these provisions differ from other provisions the Supreme Court has held do benefit the putative plaintiffs in that these foster children do not receive any monetary benefit. For instance, in Wilder v. Virginia Hospital Association, the Supreme Court held that the putative plaintiff health care provider, benefits directly from the statutory provision because it provided federal funds to States which in turn passed to the health care provider as reimbursement for services rendered. In other words, the health care provider received a monetary benefit. Likewise, in Wright v. Roanoke Redevelopment and Housing Authority, the Supreme Court held that a rent control statute benefits the putative plaintiff tenant. The statute imposed a limit on the amount of rent that the tenant could be charged and required that the rent charged provide a reasonable allowance for utilities. Although the statute directly did not give the tenant money, the tenant did benefit monetarily because the statute reduced her financial expenses. In contrast, the Part B incentive funds are provided directly to the State and used to support administrative programs. Likewise, the Part E funds are paid directly to the State and used to support programs that place participating children. Additionally, the consequence for failure to comply with the requirements of Part E is simply forfeiture or reduction of the funds. Thus, fulfilling the requirements entitles the State to money. Accordingly, compliance with the provisions found in Part B, § 627, and Part E enures to the benefit of the State, not the putative plaintiffs because the putative plaintiff never receives a monetary benefit. The funds received by the State are used entirely for the administration of the child welfare program and provide no substantive benefits to foster children. The plaintiffs therefore do not have an enforceable right under § 1983 for violations of section 627 in Part B or section 671 in Part E. Nonetheless, for the sake of completeness, I address the remaining factors used to determine whether plaintiffs have an enforceable right within the meaning of section 1983. 2. Obligation v. preference For a statute to create a right enforceable under section 1983, it must impose a binding obligation on the state, rather than merely express a congressional preference. The incentive funds available pursuant to section 627 of Part B are available to the State whether or not the State complies with the requirements in this section. In other words, the Secretary of HHS does not have authority to withhold funds if, after qualifying for the funds in a given year, a State discontinues the required programs or fails to satisfactorily maintain the required programs during the year for which the funds are authorized. This section of the Act parallels the section of the funding statute at issue in Pennhurst State School & Hospital v. Halderman. The Court held that, if the Secretary cannot terminate the funds for a State’s failure to comply with the section at issue, Congress must have intended for the provisions of that section to be horatory, not mandatory. Under this reasoning, the requirements of Part B, section 627, must simply express a congressional preference, rather than impose an obligation on the State. Accordingly, the plaintiffs have no enforceable right under § 1983 for violations of section 627 of Part B. To receive the Part E funds, the State must satisfy its requirements. The statutory language is mandatory. Therefore, the Part E requirements do impose a binding obligation on the State. Although Part E of the Act satisfies this prong of the analysis, it does not benefit the putative plaintiffs, thus foreclosing a right of action pursuant to section 1983. 3. Vagueness To find that a statute creates an enforceable right within the meaning of section 1983, the statute must not be so vague or amorphous to evade enforcement by the courts. After carefully examining each provision allegedly violated, I find that it is so vague as to evade enforcement by the courts. a. Reasonable efforts Plaintiffs assert that they have a right to have the State employ reasonable efforts to prevent placement in foster care and reunite children with their families, pursuant to section 671(a)(15). This section provides, “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which ... 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.” The Seventh Circuit, in Artist M., held that this provision was sufficiently explicit for judicial enforcement. The court concluded that, although the State had considerable discretion in choosing the method to satisfy this requirement, the courts were capable of evaluating whether the method chosen constituted a reasonable effort. The court relied on the district judge’s reasoning and the Supreme Court’s decision in Wilder v. Virginia Hospital Association, — U.S. —, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). I find this reliance unwarranted. The district judge in Artist M., reasoned that, because courts routinely enforce contractual clauses which require a party to use “reasonable” efforts to comply with the terms of the agreement, the court was capable of enforcing the reasonable efforts provision in Part E. I find this reasoning unsound. In contract actions, the party seeking a determination of whether reasonable efforts have been exerted, without question has a right of action. As such, the court must decide the parties’ rights, even if defined only by subjective or non-quantifiable standards, such as good faith or reasonable efforts. In contrast, in a private right of action, the court does not assume that a right of action exists. Rather, the court first must determine whether Congress intended for the statute to be privately enforceable. In so doing, the court examines the degree to which the statute provides an objective benchmark for measuring compliance. Thus, unlike contract actions, a court is not bound to enforce every statute regardless of its specificity. A court is only so bound when Congress expressly creates a private right of action. The Seventh Circuit also relied on the Supreme Court’s holding in Wilder, however, Wilder is inapposite. In Wilder, the plaintiff health care provider challenged the reasonableness of the rate at which health care providers were compensated for rendering medical services to Medicaid patients. The State established this rate pursuant to a condition of its federal funding, which obligated the State to adopt “reasonable and adequate” reimbursement rates. The funding statute mandated that the reimbursement rate meet the costs of operating an efficient and economical health care facility. Because the statute provided an objective benchmark for measuring the reasonableness of the reimbursement rate, the Court rejected the State’s vagueness challenge. The Wilder Court relied significantly on Wright v. City of Roanoke Redevelopment & Housing Authority. In Wright, the plaintiff tenant challenged the reasonableness of the utilities charged to occupants of rent controlled housing. Again, the court rejected the State’s vagueness challenge. Unlike Wilder and Wright, the “reasonable efforts” provision in this Act does not provide an objective benchmark for determining reasonableness. To assess the reasonableness of the health care providers’ reimbursement, a court need only compare the rate of reimbursement to customary charges of medical facilities for the same or similar treatment. Similarly, determining the reasonableness of the utility allowance requires simply comparing the utility charged to local utility rates. Indeed a court is competent to determine the reasonableness of such quantitative measure. But “reasonable efforts” cannot be reduced to a quantitative measure. In light of this significant distinction, the Wilder Court could not have categorically rejected the argument that “reasonable” is vague and unenforceable. What Wilder actually says, however, is that a standard like reasonableness is not vague or unenforceable when judged “against an objective benchmark of an ‘efficiently and economically operated facility’_” Similarly in Wright, the Court felt competent to enforce the “reasonable” allowance standard only with reference to the objective benchmark of “the individual family and its income.” Both “benchmarks” provide a basis for a relatively simple judicial calculation. But in the present case, the [Act] provides no such objective benchmark. Rather, the Act gives a general directive that is much too broad to give a federal judge a proper gauge from which to measure reasonable efforts. For these reasons, I find that the “reasonable efforts” provision is vague and unenforceable. h. Case plan and reviews Plaintiffs assert that they have a right to case plans that address specific issues in their placements and care and to have these plans formulated within sixty days after entering state custody, pursuant to 42 U.S.C. §§ 627(a)(2)(B) and 671(a)(16). The contents of the case plan and the case review procedure are adequately delineated in section 676. Yet, it is not the plan itself that plaintiffs seek; it is the successful implementation of the contents of the plans. Specifically, the case plan must contain a plan for assuring that the child receives proper care, a plan to facilitate the permanent placement of the child, and a plan “designed to achieve placement in the least restrictive (most family like) setting available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child.” Plaintiffs specifically assert a right to these goals. The First and Fourth Circuits have summarily concluded that foster children have an enforceable right within the meaning of section 1983 to ease plans and reviews. The courts reached this conclusion prior to the Supreme Court’s Wilder decision in which the Court explicitly set forth the three part analysis for determining whether a statute creates an enforceable right. These courts did not follow the Wilder analysis which I have applied. Accordingly, I do not find the First and Fourth Circuits decisions persuasive and proceed to consider whether these statutory provisions are capable of judicial enforcement. In holding that a given federal statute is judicially enforceable, the Supreme Court has relied upon the availability of an objective benchmark against which the court can measure compliance with the statute. For instance, in Wilder, the petitioners challenged the enforceability of a statute that required States to adopt “reasonable rates” on grounds of vagueness. The Supreme Court rejected their argument because “the statute and regulation set out factors which a State must consider in adopting its rates. In addition, the statute requires the State, in making its findings, to judge the reasonableness of its rates against the objective benchmark of an ‘efficiently and economically operated facility....’” Unlike the statute in Wilder, the statutory provisions relating to the case plans and case reviews do not provide an objective benchmark against which compliance can be measured. Rather, case plan and case review requirements are couched in broad, goal-oriented terms. The statutory definition of case plan refers to “proper care,” “facilitating return of the child to his home or the permanent placement of the child,” and “discusspng] the appropriateness of the services that have been provided to the child.” Likewise, the regulations speak in broad terms, such as “the best interest and special needs of the child.” There is no objective benchmark against which compliance with this provision can be measured. Whether a child has a plan satisfying this provision is as individual as each child. Unlike Wilder, where the efficiently operated facility functioned as the norm against which compliance could be measured, there is no way to measure the normal or average needs of a child in foster care. Accordingly, I find that the provisions requiring a case plan and case review system are so vague and amorphous as to evade judicial enforcement. c. Foster homes and institutions Plaintiffs assert a right to be placed in foster homes and institutions established and maintained in accord with nationally recognized standards pursuant to section 671(a)(10). Specifically, the statute requires that the foster homes and institutions be “reasonably in accord with recommended [national] standards.” The language “reasonably in accord with” compares with the “reasonable efforts” language addressed previously. I adopt my reasoning used in addressing whether the “reasonable efforts” language was capable of judicial enforcement. Accordingly, I find that this provision requiring placement in foster homes and institutions that are “reasonably in accord with” national standards is vague and unenforceable. B. No Implied Private Right of Action Having foreclosed any right of action within the meaning of section 1983, I also must consider whether the statute itself creates an implied private right of action in favor of plaintiffs, because an implied right of action represents another avenue in which plaintiffs could seek relief for violations of the Act. Determining whether a statute creates an implied right of action is similar to determining whether a statute creates an enforceable right under section 1983 in that both inquiries require an examination of congressional intent. Yet, the plaintiff carries an even heavier burden in claiming an implied private right. For a federal statute to create an implied private right of action, Congress must have affirmatively contemplated private enforcement when it passed the statute. Thus, “[i]n determining whether a federal statute that does not expressly provide for a particular private right of action nonetheless implicitly created that right, [the court’s] task is one of statutory construction. The ultimate question ... is whether Congress intended to create the private remedy ... that the plaintiff[s] seek[ ] to invoke.” The Supreme Court has set forth the relevant factors in determining whether a federal statute created an implied right of action. The court should consider whether Congress enacted the statute for the “especial” benefit of a class to which plaintiff is a member. Moreover, the court should consider “the language of the statute itself, its legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to supersede or to supplement existing state remedies.” The first factor asks whether Congress enacted the statute for the “especial” benefit of the class to which plaintiffs are members. This inquiry overlaps my earlier discussion on whether Congress intended for the statute to benefit the putative plaintiff. Accordingly, it is not necessary to explore the issue again. I adopt my earlier finding that Congress did not intend for the statute to benefit the plaintiffs. The language of the statute in no way contemplates private enforcement of the Act. Moreover, the legislative history makes no mention of whether the Act creates a private right of action for violations of sections 627 and 671. Rather, the legislative history repeatedly suggests that Congress intended for the Secretary of Health, Education and Welfare to monitor and oversee the plans submitted by the States and to report his or her findings back to Congress. Thereby, Congress vested itself with the ability to ensure compliance with these provisions through its power over the appropriations made to the States. Thus, congressional intent to create a private right of action cannot be inferred from the language of the statute or its legislative history. Accordingly, the essential predicate for implying a private remedy is absent. In addition, the Supreme Court has held that when a “statute by its terms grants no private rights to any identifiable class and proscribes no conduct as unlawful,” Congress did not intend, either expressly or by implication, to create a private right of action. This holding applies here. The Act does not create any private rights to any identifiable class. Additionally, the Act proscribes no conduct as unlawful. Rather, the Act encourages States to implement certain plans. Indeed, failure to comply with the Act’s requirements is not unlawful; it simply affects the States’ receipt of federal funding. Accordingly, I find that the Act creates no implied private right of action. C. Child Abuse Prevention Act Finally, plaintiffs contend that they have an enforceable right to prompt and accurate investigations of allegations of abuse and neglect. They allege this right arises from a conjunction of requirements in two separate statutes, the Child Welfare Act and the Child Abuse Prevention and Treatment Act (the “Child Abuse Prevention Act”). Plaintiffs point to several obligations imposed on States to qualify for federal grants for child abuse prevention and treatment programs. In particular, they claim that a State is required to “provide that upon receipt of a report of known or suspected instances of child abuse or neglect an investigation shall be initiated promptly to substantiate the accuracy of the report....” The Child Abuse Prevention Act further requires that, “[pjrograms or projects relating to child abuse and neglect assisted under part B of the title IV of the Social Security Act [42 U.S.C.A. § 620 et seq.] shall comply with the requirements set forth in paragraphs (1)(A), (2), (4), (5), and (10) of subsection (b) of this section.” There is no evidence to establish that the State received funds under the Child Abuse Prevention Act or that State programs or projects relating to child abuse and neglect wrere assisted with Part B funds. Because receipt of federal funds is essential to create a legal obligation to investigate and because plaintiffs’ offered no evidence of failures to report under 42 U.S.C. § 671(a)(9), they have failed to establish an enforceable right. D. Alternative Findings of Fact Even assuming, however, that a right of action does exist, I find that the State did not violate the Act. The Office of Community Services (“OCS”) is the branch of the Louisiana Department of Social Services (“DSS”) responsible for child welfare services, including foster care. Each plaintiff has a case manager responsible for his or her plan and the delivery of services to the child. Most of the plaintiffs have had more than one case worker while in State custody. However, since 1982 each plaintiff has had an assigned case worker. Louisiana submitted plans to HHS under Parts B and E of the Child Welfare Act of 1980 in order to qualify for federal funds for its child welfare services and foster care programs. The plans had the proposed effective date of October 1, 1982, the beginning of federal fiscal year 1983, and the funds were received on that date. In December 1982 or January 1983, the State certified to HHS that it was operating the programs required by the Child Welfare Act of 1980 in order for it to receive Part B incentive funds. This certification was effective October 1, 1982. Louisiana first received Part E and Part B incentive funds in fiscal year 1983. The State was required to return its Part B incentive funds for fiscal year 1983 after a federal audit found the State was not in compliance with the requirements for receiving the additional funds. There was no evidence to establish that Louisiana ever received additional funds under the Child Abuse Prevention Act or ever applied its Part B funds to child abuse and neglect programs. Plaintiffs stipulated that in the absence of testimony relating to a topic that they assert must have been discussed in a case plan or at a case review, that topic had been addressed adequately. The ten plaintiffs who contested the adequacy of their case plans failed to show that they had received foster care maintenance payments under Part E. Plaintiffs’ experts, Dr. Hunzeker, and Dr. Lynn Perlmutter, an assistant professor of social work at Tulane University, gauged the State system by whether there was absolute compliance with the Child Welfare Act’s case plan and case review requirements. However, based upon the expert testimony of Mr. Robert McKeagney, former deputy commissioner of the Maine Department of Human Services and currently the senior public agency consultant at the Child Welfare League of America, I find the standard for determining whether the defendants have met their obligation under the Act to be substantial compliance. The Act requires the State to make reasonably timely and thorough review of each foster child’s case plan and needs. Compliance with this standard is capable of judicial determination. Accordingly, I address each plaintiff’s situation to determine whether there was substantial compliance with the Act. Del and Brendolyn A. Brendolyn A. was born in October 1978. Her brother Del A. was born August 1, 1981. Del and Brendolyn were brought into State custody in September 1981 because of suspected abuse. Del has had seven foster care placements. Three placements were in institutions for a total of about 2 years, and the rest of the time he has spent in four foster homes. Del’s mother’s parental rights were terminated in 1989. Del’s mother’s interest in and capacity to care for her children diminished. In response DHHR and DSS, as well as the State courts changed Del’s plan’s goals from attempting to reunite Del with his mother to termination of the mother’s rights and adoption. Both Dr. Hunzeker and Mr. McKeagney agreed that the State should have set a firm goal of adoption sooner than it did. However, both considered that this required a difficult exercise of professional judgment, which judgment should be given deference. Dr. Hunzeker testified that, based on the case records, Del received too few medical and dental examinations while in State custody. Dr. Hunzeker’s conclusion that Del did not receive adequate medical or dental care was measured against a standard of “proper care” not required by the Act. However, in considering the minimum care required by the Act and the Constitution, there is no evidence that Del did not receive medical or dental care that he needed. Brendolyn has had eight foster care placements. She has spent four and a half years in four institutional placements. In September 1986, Brendolyn was placed in Bethlehem Children’s Home, where she remains today. A parent in Brendolyn’s third foster home used excessive discipline. A statement in the record revealed that one social worker, after placing the child in the foster home, knew about the excessive discipline for eight months but did nothing. While the record does not show a medical or dental examination for each year Bren-dolyn was in State custody, there is no evidence that any of her medical or dental needs were not met. The case plans for Del and Brendolyn were developed together for some time because they were brother and sister. Dr. Hunzeker testified and I find that this was appropriate. Del and Brendolyn’s case plan first was developed on January 28, 1983. Del has had eleven administrative and at least seven judicial reviews since October 1, 1983. Brendolyn has had ten administrative reviews and nine judicial reviews during the same time. No administrative or judicial reviews of Del or Brendo-lyn's case occurred between November 1983 and November 1984, November 1986 and May 1986, and October 20, 1987 and August 25, 1988. Nevertheless, I find that the case plan was reviewed sufficiently. Dr. Hunzeker was critical of Del and Brendolyn’s plan as it emerged from reviews in 1986 and 1986 for holding out the possibility of two goals. One goal was reunification with their mother and a secondary goal was adoption. However, Mr. McKeagney testified and I find that it was not professionally unacceptable to hold out two goals that are mutually contradictory in the long-term if it is questionable whether the primary goal can be achieved. Dr. Hunzeker opined that Del and Bren-dolyn were victims of foster, care drift. That term refers to children still in the foster care system after many years because permanent goals were not established, maintained and carried out. However, Mr. McKeagney considered and I find that Del and Brendolyn’s ease plan and case reviews involved a timely and thorough assessment of their needs that substantially complied with the Act. Chris B. Chris B. is seventeen years old. He entered State custody in August 1979. Although Chris’ parents are unable to care for him, they have expressed some continued interest in him. They have been unwilling to surrender their parental rights. Chris has had eight placements in his eleven years in State custody. Chris has been identified throughout this period as having emotional problems and being severely retarded. In December 1988, there were allegations that the foster father often drank and drove, and that on one occasion he slept in Chris’ bed allegedly to control Chris after Chris had lost control of his behavior. There was also an allegation that Chris had been physically abused. These complaints were investigated by the State and found valid. State social workers met with the family, and a corrective action plan was agreed upon between the agency and the foster parents delineating the improvements and changes that were necessary. However, although the foster parents refused to sign the corrective action plan, Chris remained in the home. Subsequently, another allegation of abuse was verified and Chris was placed in G.B. Cooley, a specialized institution for disturbed or retarded individuals in Monroe, Louisiana, where he currently resides. Plaintiffs have not proved by a preponderance of the evidence that the decision to allow Chris to remain in the foster home temporarily did not involve an exercise of minimally acceptable professional judgment. Therefore, I find such judgment should be given deference. Chris’ case plan was first developed on September 1, 1983 and the plan has had twenty-five judicial reviews since then. However, the only administrative reviews of his case took place in November 1984, July 1987, and June 1988. A number of “team conferences” were held in the interim, but defendants did not contend that these satisfied the Child Welfare Act’s standards. Mr. McKeagney was critical of the failure to establish a timely administrative review process until June 1988. However, he considered and I find that there had been a reasonable identification of Chris’ needs over this time. Beginning in June 1988, administrative reviews occurred every six months. Several reviews were critical of Chris’ case plan for not addressing either the appropriateness of placement or how court-ordered services were to be carried out. Chris’ final administrative review was conducted on July 19, 1990. The plan as it emerged from this review was determined by both the review panel and Dr. Hunzeker to be adequate. Dr. Hunzeker considered Chris to be a victim of foster care drift. She felt that there had been insufficient efforts made to terminate parental rights, thus enabling adoption. Dr. Hunzeker also was critical of Chris’ long-term plan goal of foster care as opposed to adoption or reunion with his natural parents. However, she conceded and I find that long-term foster care is an acceptable goal within the child welfare profession, especially when, as Mr. McKe-agney testified and I find, adoption was highly improbable for Chris due to his severe retardation. Therefore, I find there was substantial compliance with the Act. Stephanie C. Stephanie C. was born August 18, 1974. She has been in State custody since June 1981. Stephanie has behavioral problems and is borderline mentally retarded. Both her natural parents suffered from emotional problems that left them unable to care adequately for their children. Stephanie has had five placements since coming into State custody, twice with her sister Stacey. Stephanie’s difficult behavior has caused several of these placements to disrupt. After Stephanie was taken into State custody an allegation was made and credited that Stephanie had been sexually abused by her mother’s boyfriend while she still lived with her mother. The State identified Stephanie as needing psychiatric treatment, but she did not receive it during at least her first three years in State custody. Once placed at the MacDonnell Home in 1984 she was in a therapeutic program that gave some attention to her needs arising from the suspected sexual abuse. Stephanie’s case plan first was developed on December 18, 1981. Since that time, Stephanie has had twelve administrative and ten judicial reviews. No administrative or judicial review occurred between April 3, 1986 and March 25, 1987. Dr. Hunzeker criticized various aspects of Stephanie’s case plans over the years, but no pattern emerged that the State ignored an issue over a sustained period of time. Dr. Hunzeker considered and I find that Stephanie’s six administrative reviews since April 1988, and the case plans that emerged from them, were timely and adequate. Therefore, I find that Stephanie received a reasonably thorough periodic assessment of her needs that substantially complied with the Act. Leroy E. Leroy E. was born December 12, 1976 and became known to the State in 1981 after he set fire to his house and had been abandoned by his mother. He was identified as a victim of neglect and was placed in his grandmother’s home. In September 1983 the grandmother requested that the State take Leroy because he had cut his sister with a knife, run away, and stolen $500 from the grandmother. Leroy has substantial behavioral problems. He likes to set fire to things and on one occasion set fire to his foster father. Five of his seven years in State custody have been spent in institutions. He has had seven placements, and now resides at Bethlehem Children’s Home. Leroy was evaluated in July 1981 as needing a psychological evaluation but this did not occur until May 1983. Dr. Hunzeker faulted Leroy’s case plans and reviews for not working toward achieving a less restrictive placement than an institutional setting. She also faulted his plan’s goal being long-term foster care rather than adoption. The State had come to consider Leroy unadoptable. On September 7,1988, a State juvenile court determined that Leroy was not adoptable and ordered that a voluntary surrender of custody by Leroy’s mother was not to be sought or accepted. Leroy’s case plan first was developed on October 4, 1983. He has had fourteen judicial and fifteen administrative reviews since then. He had no judicial or administrative review between January 15 and August 1, 1985. The administrative reviews between January 1985 and February 1989 showed a pattern of failing to assess the extent of compliance with the case plan as it emerged from the prior review. However, Dr. Hunzeker considered his administrative reviews and case plans since August 1, 1989 to be adequate. I find that Leroy has had a reasonably timely and thorough periodic assessment of his needs. Therefore, there has been substantial compliance with the Act. Flemming G. Flemming G. came into State custody in 1978, when he was six months old, after his mother abandoned him. Flemming has had twenty-four placements in his twelve years in State custody. These have included foster homes, specialized foster homes, group homes of six to eight children, institutional settings, and a number of placements that were temporary by design. Flemming has several times been placed in pre-adoptive homes, but each of them has disrupted. Flemming has been determined by a State court judge to be unadoptable. Flemming was identified as needing psychiatric treatment in August 1982, but did not receive it until May 1983. A year later the therapeutic relationship was broken, against the advice of the therapist, to facilitate a foster home placement. Throughout the record, the State and the State courts identified Flemming’s single overriding need to be a stable, lasting placement. Flemming began running away in 1988 and he has run away four times since. At the time of trial he had been a runaway since July 1990. Flemming’s case plan first was developed in March 1983. An administrative review occurred a year later, and then not again until February 2, 1989. There were seven intervening judicial reviews and five intervening team conferences. Mr. McKe-agney considered and I find that during this period the DHHR deviated significantly from legal and professional standards for a case plan and case review system for Flemming. However, since February 2, 1989, Flemming’s administrative reviews have been timely and generally comprehensive, and have been in substantial compliance with the Act. Keithrell K. Keithrell K. was born September 3,1988. Keithrell was taken into custody after her mother left her with two acquaintances, who took the baby to another friend, who took Keithrell to the police. The police contacted OCS and on February 16, 1989 Keithrell was taken into State custody. Keithrell was placed in a foster home, where she remains today. Her case plan was developed on March 15, 1989. Her plan was administratively reviewed on July 18, 1989 and her goal was identified to be adoption. A petition for termination of parental rights was not filed until May 1990, after Keithrell was named a plaintiff in this action. Keithrell has begun to bond with her foster mother and the foster parents have expressed a willingness to adopt her. I find that Keithrell has had a reasonably timely and thorough periodic assessment of her needs that has complied substantially with the Act. James and Clinton L. James and Clinton L. are fraternal twins who were born on January 6, 1980. They entered State custody in May 1988, and have been placed together throughout their lives. Their natural mother has drug and alcohol problems and was at one time diagnosed as schizophrenic. The mother has continued to visit her children and has gone through extensive parent counseling and therapy. Some doctors are of the opinion that she remains too mentally ill to parent her children; others disagree. Since 1984, the plan’s goal has been adoption. Judicial orders from January 1986 to February 1987 precluded the State from seeking termination of their parents’ rights. A judge then ordered the State to file a termination petition. The State mistakenly filed a petition to terminate the mother’s rights based on abandonment rather than unfitness. Therefore, termination of parental rights was granted only as to the father. After the State filed a second petition to terminate the mother’s rights, now based upon her alleged unfitness, a different juvenile court ordered the State to desist from its efforts to terminate the mother’s rights. Finally, in June 1990 another termination petition had been filed against the mother that was being adjudicated at the time of trial. The boys’ first case plan was developed on June 14, 1983. In the mid-1980’s, Clinton’s case plan failed to discuss his growing mental health problems. Clinton was identified as needing psychotherapy in March 1985, but did not receive even the preparatory evaluation until July 1986. James and Clinton did not receive a dis-positional court hearing until July 1986. Dr. Perlmutter' considered the boys to be victims of inadequate case planning and foster care drift. However, Mr. McKeag-ney considered that the natural mother’s continued contact with but inability to take custody of her children presented the State with a difficult judgment call. He also considered that court orders precluding termination of the mothers’ rights were the primary impediment to the adoption of the boys. Finally, he considered that their case review systems had been timely and adequate. I agree and find that there has been substantial compliance with the Act. Charlotte O. Charlotte O. was born on October 11, 1987 and she entered State custody on November 22, 1989. The incident that led to the State taking custody of Charlotte was a fall from a window or stairs that led to a hairline skull fracture. The doctor at the hospital saw Charlotte’s mother slapping her, yelling at her and eating food off of her plate, and noted that the child hid when the mother came into the room. The doctor called the OCS and advised that the child not be allowed to return to her mother. She then was taken into State custody. Charlotte was placed initially in Charity Hospital and then moved to a foster home, where she remains today. Charlotte’s permanent plan always has been reunification with her mother. Mr. McKeagney was of the opinion that Charlotte’s case review system was timely and complete and there was no substantial evidence to the contrary. Therefore, I find there was substantial compliance with the Act. Dani M. Dani M. is seventeen years old and lives with her foster parent, Mrs. E, her former sixth grade teacher. Dani has resided with Mrs. E. for two years. Dani’s mother was physically and mentally abusive to her and abandoned her forty to sixty times, for periods of a few days to a few weeks. In June 1988, Dani began to live with Mrs. E. under an informal adjustment agreement approved by a State court. Dani entered State custody on March 17, 1989. Dani’s case plan first was developed in May 1989. It set a goal of reuniting Dani with her mother, even though Dani did not want to be reunited and the mother’s whereabouts were unknown. Dani’s plan goal later was switched to adoption. Mrs. E. has received foster care maintenance payments from the State. Mrs. E. wishes to adopt Dani, but Dani is unsure whether or not she wishes to be adopted. Dani explained that she wants to take time to decide because it is the first time in her life she has had control over her future. Plaintiffs’ experts did not testify about the adequacy of Dani’s case plans or case review system. I find that Dani has received a reasonably timely and thorough periodic assessment of her needs that substantially complied with the Act. Special Treatment Ms. Ann Joseph was the OCS “program specialist” for the plaintiffs over the year or so prior to the second trial. She was known as the “Del A.” coordinator, and handled requests for services for the plaintiffs. Throughout OCS, program specialists are responsible for approving requests for services. All plaintiffs were assigned to a single program specialist so that data could be collected on their cases for use in this litigation. She testified that in 1986 the State child welfare agency had made a conscious decision not to treat the plaintiffs in this action differently from other foster children. Assistant Secretary Kelley testified that in early to mid-1990 she authorized a reduction in the case loads of the various OCS case workers who were assigned to the plaintiffs. She explained that it had been brought to her attention that the case workers for the plaintiffs had been having difficulty both managing their regular activities and complying with the documentary and other requests from attorneys and expert witnesses on both sides of this litigation. Anne St. Pierre, Del’s current and Flem-ming’s former adoption specialist at OCS, testified that she was instructed to make copies of everything done in the case, and to forward to a DSS attorney copies of everything that went into Del’s case record. Ms. St. Pierre testified that she received no instruction to and did not consciously treat Del differently in the level of her social work practice than her other assigned foster children. Ms. St. Pierre testified that she was supposed to have received a reduction in her caseload by five children to enable her to process the extra paperwork created to defend this lawsuit, but she did not receive such a reduction. Ms. Sharon Worthy, the case manager at OCS for both Leroy and the mother of James and Clinton L., testified that as a result of these two assignments her case load was about half that of the other case workers in her unit, except for another case worker who also was assigned to a plaintiff involved in this lawsuit. She testified that she received instructions pertaining to preparing for this litigation, but no instruction to provide a higher standard of care. She testified that in preparing for this litigation she had to do a lot of work that she normally would not have to do. She testified that she consciously had not given preferential treatment to Leroy over her other assigned children. In several cases, there was a tendency for important or long-awaited steps to have been taken in the half year prior to the second trial. A few cases actually saw a decrease in activity. I accept the bona fides of the OCS workers, who were plaintiffs’ witnesses, and that of their director, Ms. Kelley, that there was no conscious attempt to provide a standard of care that was higher for the plaintiffs than for other children in State custody. II. Asserted Constitutional Violations Plaintiffs also allege the existence and violation of certain substantive constitutional rights. Specifically, plaintiffs assert that they have a right to 1) reasonable physical safety, 2) emotional and psychological safety, and 3) placement in a least restrictive setting. In addition, plaintiffs assert violations of their procedural due process rights. As a general matter, a State is under no constitutional duty to provide substantive services for those within its borders. However, when a person is in custody of the State, or a “special relationship” exists between a person and the State, the State has a duty to provide certain services and care. Even when a State has a duty, it necessarily has considerable discretion in determining the nature and scope of its responsibilities. In any case, the State must satisfy the custodial individual’s basic needs and constitutionally protected liberty interests. Section 1983 creates a cause of action for deprivations of these due process liberty interests. To state a cause of action for violation of the Due Process Clause under Section 1983, the plaintiffs must assert a recognized liberty or property interest within the purview of the Fourteenth Amendment to the United States Constitution of which they were recklessly or intentionally deprived by a person under color of law. It is well settled that only a limited range of interests fall within this provision, and courts must