integral aspect of achieving compliance. Since compliance has not been achieved, monitoring may be ordered as a means to achieve and enforce compliance. But even if continued monitoring would be considered a modification of the decree, modification would be supported by a change in circumstances. The Consent Order contemplated compliance with various requirements would be reached between July and December 1991. Since full compliance has yet to be achieved, that is a changed circumstance that justifies extending a means contemplated by the Consent Order for reaching compliance.
Defendant also contends that the Consent Order cannot be enforced because of a change in the law that has occurred since the order was first entered. One of plaintiffs' claims was that defendant was required to comply with the statutory requirement that "reasonable efforts . . . be made (A) prior to 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." 42 U.S.C. § 671(a)(15). In granting preliminary relief, this court held, as had a number of other courts, that the "reasonable efforts" standard was enforceable in a suit under 42 U.S.C. § 1983. Norman, 739 F. Supp. at 1185-87. Subsequent to entry of the Consent Order, however, the Supreme Court ruled to the contrary. Suter v. Artist M., 503 U.S. 347, 118 L. Ed. 2d 1, 112 S. Ct. 1360 (1992). Plaintiffs contend the Consent Order is still enforceable because they had a number of other still substantial claims in their complaint.
The parties agree that the applicable standard is whether there is a substantial federal claim. Evans v. City of Chicago, 10 F.3d 474, 479-80 (7th Cir. 1993), cert. denied, 128 L. Ed. 2d 460, 114 S. Ct. 1831 (1994). Evans does not delineate what it means by "substantial." Plaintiffs argue it means nonfrivolous. See Hagans v. Lavine, 415 U.S. 528, 536-37, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974); C.A. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 3564 (2d ed. 1984). The discussion of the claims in Evans, however, indicates a standard somewhat higher than mere nonfrivolousness. It must be an issue over which there are "genuine uncertainties." Evans, 10 F.3d at 479. This court understands Evans as meaning the federal claim may not be one that clearly is without merit.
In the preliminary injunction ruling, this court held (adopting the magistrate's recommendation) that a number of provisions of the Adoption Assistance and Child Welfare Act of 1980 ("AAA") were enforceable, not just 42 U.S.C. § 671(a)(15). See Norman, 739 F. Supp. at 1185 n.8; 1203-08 (citing 42 U.S.C. §§ 622, 627, 671(a)(4), 671(a)(16), 675(1)). Other courts have also held that provisions other than § 671(a) (15) are enforceable. See L.J. v. Massinga, 838 F.2d 118, 123 (4th Cir. 1988), cert. denied, 488 U.S. 1018, 102 L. Ed. 2d 805, 109 S. Ct. 816 (1989) (§§ 627(a)(2)(B) 671(a)(9), (10), (16), 675); Lynch v. Dukakis, 719 F.2d 504, 510-11 (1st Cir. 1983) (§§ 608, 671(a)(16), 675); Jeanine B. v. Thompson, 877 F. Supp. 1268, 1283-85 (E.D. Wis. 1995) (§§ 671(a)(2), (3), (7), (10), (11), (13), 627(a)(2), 627(b)(3)); LaShawn A. v. Dixon, 762 F. Supp. 959, 988-89 (D.D.C. 1991), aff'd on other grounds sub nom., LaShawn A. v. Kelly, 301 U.S. App. D.C. 49, 990 F.2d 1319 (D.C. Cir. 1993), cert. denied, 510 U.S. 1044, 126 L. Ed. 2d 659, 114 S. Ct. 691 (1994) (§§ 627, 671(a)(10), 675). See also Angela R. v. Clinton, 999 F.2d 320, 323-24 (8th Cir. 1993) (claims to enforce provisions of the AAA other than §§ 671(a)(9) & (15) are not frivolous). Plaintiffs' complaint included claims based on § 627(a)(2)(c), requiring participating states to have "a service program designed to help children, where appropriate, return to families from which they have been removed;" §§ 622(b)(2) and 671(a)(4), requiring participating states to coordinate child welfare programs with other programs that provide benefits and services to poor families; §§ 671(a)(16), 675(1), and 675(5)(c), requiring case plans for every child and the development of a case review system; and §§ 627(a)(2)(B) and 671(a)(12), providing for notice and hearing rights.
Defendant contends the claims seeking enforcement of the additional provisions are insubstantial in light of Artist M., because the additional provisions are, like the "reasonable efforts" standard in Artist M., too vague to be enforced.
Again, the merits of a case are not to be fully reconsidered when deciding whether to enforce a consent decree, only whether the claims are now clearly without merit. Including the preliminary injunction ruling in the present case, at least five published cases decided before Artist M. held that some or all of the provisions presently under consideration were sufficiently clear to be enforced. Subsequently, two published cases have considered the enforceability of pertinent provisions of the AAA in light of the pertinent holding in Artist M. One holds the provisions can be enforced, see Jeanine B., supra, and the other holds it is not frivolous to contend the provisions are enforceable, see Angela R., supra. In light of the existing precedents, it cannot be held that plaintiffs' claims are clearly without merit.
It also must be kept in mind that this court is only granting enforcement of parts of the Consent Order. The relief that will be granted does not include the enforcement of any of the "reasonable efforts" provisions of the Consent Order.
None of the provisions of the Consent Order that are being enforced are ones that could only have been obtained based on a compromise of the § 671(a)(15) claim. The enforcement that is being granted is based on still viable claims. Therefore, this court has authority to grant the relief.
IT IS THEREFORE ORDERED that:
(1) Jess McDonald is substituted for Sue Suter as the defendant in this case.
(2) Plaintiffs' motion for continued monitoring [209-1] is granted in part and denied in part. Plaintiffs' motion for declaratory and injunctive relief redressing substantial non-compliance with the consent decree and the court order of 03/10/95 [209-2] is denied without prejudice.
(3) The Monitor shall issue the Seventh Monitoring Report no later than April 30, 1996.
(4) An Eighth Monitoring Report shall be filed covering calendar year 1996, but shall be limited to reporting on compliance with PP 5(a) (Cook County), 5(b) (Cook County), 6(b), and 9(c) of the Consent Order and DCFS's methods of determining Norman eligibility. For calendar year 1996, defendant shall comply with the information requirements of PP 15(a), (b) (Cook County), (d), and (i) of the Consent Order. Defendant shall also comply with PP 11, 15(e) and 15(f) of the Consent Order as they relate to PP 5(a), 5(b) (Cook County), 6(b), and 9(c). The term of the Monitor's appointment shall continue until the date beyond December 31, 1996 permitted for preparing the Eighth Monitoring Report and necessary to complete the additional procedures set forth in P 16 of the Consent Order.
William T. Hart
UNITED STATES DISTRICT JUDGE
DATED: APRIL 11, 1996