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APPEAL OF: Wendy Buzzanco
Adoption Subsidy
Docket No: 7599013
Opening
This is an administrative hearing on the appeal of Wendy Buzzanco from a decision of the Erie County Department of Human Services (Erie County DHS) and the Department of Public Welfare (Department) concerning a request for adoption assistance.
An administrative hearing was held on October 13, 1999 from 9:20 a.m. to 11:15 a.m. at the Bureau of Hearings and Appeals, Erie, Pa. The witnesses were sworn in by the undersigned and testified under oath. The county agency submitted a brief to the Bureau of Hearings and Appeals on December 27, 1999. Appellant submitted a brief on December 28, 1999. Upon review of the testimony, briefs and exhibits, the undersigned prepared this Recommendation and Order.
Katrina L. Dunderdale, Regional Director, presided.
Appearances
For the Department of Public Welfare:
Michael Cauley, Esquire
Paul Cancilla, Director of Placement, Truancy & Support Services, Erie County DHS Office of Children & Youth
For Appellant:
Wendy Buzzanco, Appellant
Exhibits
For the Department of Public Welfare:
None
For Appellant:
A1 Adoption petition and decree
A2 Delegation of guardianship authority
A3 Affidavit
A4 Oath of Publication
A5 Special Power of Attorney
A6 PIQ9202
A7 PIQ8705
A12 Portions of a Social Security Administration pamphlet
A13 Eye Examination Report dated March 31, 1998
Issues
1. Does this appeal qualify as an "extenuating circumstance"?
RECOMMENDED ANSWER: Yes
2. Is it material that the county agency was not given an opportunity to locate an adoptive home that would not require adoption assistance?
RECOMMENDED ANSWER: No
3. Is it material that the child's placement in Appellant's home was a "foster care" placement arranged through a nonprofit, private agency in Connecticut?
RECOMMENDED ANSWER: No
4. Is it material if a legal flaw existed in the adoption proceedings, specifically that the Interstate Compact may not have been advised of the transfer of the child from Connecticut to Pennsylvania when the child was transferred into Appellant's custody for foster care purposes?
RECOMMENDED ANSWER: No
5. Was the county agency correct to deny adoption assistance benefits to Appellant in June 1999?
RECOMMENDED ANSWER: No
Findings of Fact
1. The child, formerly known as Silvia Chura Campos, was born in Bolivia on February 13, 1992. (Transcript at 95; Exhibit A1).
2. The child was born blind with multiple congenital disorders including congenital sclero cornea, glaucoma, congenital corneal opacification, congenital nystagmus, and esotropia. (Transcript at 18 and 51; Exhibit A13).
3. The child resided in a churchoperated orphanage in La Paz, Bolivia until February 1994 when the child was transported to the United States through the auspices of a Connecticut agency known as Healing the Children Northeast, Inc. ("Healing the Children") (Transcript at 79 to 81 and 95; Exhibits A2 & A5).
4. The child was transported to the United States on a medical visa and with the assumption that she would receive medical treatment for her conditions. (Transcript at 75 and 81; Exhibit A5).
5. Upon her arrival in the United States, tile child was placed by Healing the Children with a "foster" family in Connecticut. (Transcript at 75, 80 and 81).
6. From February 1995 until November 1995, the child resided with this family until a medical condition of the foster mother interfered with their ability to care for the child. (Transcript at 75, 80, 103).
7. In 1995, the Connecticut foster family, their relatives and Healing the Children made inquiries looking for a family willing to assume custody of the child, in order to avoid the need to return the child to Bolivia. (Transcript at 75 to 77).
8. Appellant worked for the Department of Public Welfare's Bureau of Blind & Visual Services in Erie, Pennsylvania, in the fall of 1995 as a vocational rehabilitation counselor. (Transcript at 76 and 77).
9. Appellant learned of the existence and plight of the child during a staff meeting at the Bureau of Blind & Visual Services (BVS). (Transcript at 76 and 77).
10. BVS was a vocational rehabilitation arena, under the Department of Public Welfare, which dealt with the visually impaired to provide support and to enable the disabled to function independently. (Transcript at 105).
11. Appellant and her husband met the child in Connecticut and assumed foster care for the child on Labor Day Weekend of 1995. (Transcript at 78).
12. The branch of Healing the Children located in Connecticut indicated to Appellant that it was unable legally to enter into a foster care relationship with individuals in Pennsylvania. (Transcript at 107 to 109).
13. The child was placed in Appellant's home as a foster care placement through the actions and auspices of Healing the Children's sister organization, Healing the Children in New Jersey. (Transcript at 107 to 109).
14. All prefoster placement arrangements were arranged and handled by Healing the Children in New Jersey. (Transcript at 107 to 120).
15. Appellant received nonfinancial assistance through Family Services of Erie County, which conducted the home study prior to the adoption and which provided other pre-adoption services. (Transcript at 83 and 84).
16. The social worker who assisted with the home study was employed by the Bureau of BVS. (Transcript at 111 to 115).
17. On November 10, 1995, Healing the Children in New Jersey officially placed the child in Appellant's home and executed documents granting responsibilities and rights as foster parents to Appellant and her husband. (Transcript at 107; Exhibit A2).
18. Appellant and her husband did not decide to adopt the child until 1997 . (Transcript at 80 and 82).
19. Appellant and her husband executed an adoption petition on July 11, 1997 and filed the same with the Erie County Court of Common Pleas in Pennsylvania. (Transcript at 56 and 83; Exhibit A1).
20. The Erie County Court of Common Pleas appointed a guardian for the child, Patricia Kennedy, Esq. (Transcript at 99).
21. On August 28, 1997, the child was adopted by Appellant and her husband by Order of the Erie County Court of Common Pleas, Orphan's Court, and became known as Silvia Campos Buzzanco. (Transcript at 56 and 74; Exhibit A1).
22. On May 7, 1999, Appellant requested adoption assistance and an appeal on the grounds that the child is a special needs child and extenuating circumstances exist. (Transcript at 42).
23. Appellant claimed in her request that the child was legally blind and developmentally delayed, and was eligible for SSI (Supplemental Security Income) although a SSI determination was never made. (Transcript at 55).
24. On June 7, 1999, the Erie County DHS denied Appellant's request. (Transcript at 43).
25. Appellant's testimony was credible.
26. The testimony provided by the county's representative, Paul Concilla, was credible.
27. At the time of the administrative hearing, the child was legally blind and her medical condition continues to be a degenerative one. (Transcript at 18 and 128 to 134).
28. As of the time of the administrative hearing, the child had received five corneal transplants since her placement with Appellant in 1995 and additional transplants are expected until she attains majority. (Transcript at 81 and 130).
29. Appellant was unaware if the existence of the adoption subsidy until 1999. (Transcript at 88 and 89).
30. The child has a physical handicap. (Transcript at 18 and 48; Exhibit A13 and 129 to 134).
31. Child has a genetic condition which indicates a high risk she will be visually impaired during the remainder of her lifetime. (Transcript at 18, 48 and 51, 128 to 134; Exhibit A13).
32. Child is a member of a racial minority group. (Transcript at 18; Exhibit A13).
33. Child was more than five years of age on the date she was adopted by Appellant. (Transcript at 56, 74 and 95).
34. Child was in the legal custody of a private, nonprofit, foster care agency at the time of her placement in Appellant's home in 1995. (Transcript at 79 to 81, 95).
35. By the time Appellant filed the adoption petition in 1997, the child had resided with Appellant and her family for approximately eighteen (18) months. (Transcript at 56, 83 and 107).
Discussion
Appellant appeals the decision of the Department to deny her request for adoption subsidy for her adopted child, Silvia.
The Department's Position
The Department argues that Appellant failed to request and receive the adoption subsidy agreement prior to the entry of the adoption decree and, therefore, pursuant to 55 Pa. Code §3140.203, her request is untimely. In addition, the Department argues that it was not afforded the opportunity to find an alternative adoptive home which might not require the adoption assistance. Also, the Department contends that the child was never in the custody of either a public or private adoption agency approved by the Department. Lastly, the Department argues that the termination of parental rights and the adoption were flawed because of a violation of the Interstate Compact agreement.
Appellant's Position
Appellant argues that her daughter is legally blind and requites continuous medical treatment. In addition, Appellant contends that the medical treatments will continue for child through her childhood and should taper off once she becomes an adult. Appellant contends that child will always be legally blind but that medical treatment will afford her an ability to perceive visually some objects. Appellant argues that she was never informed about the adoption subsidy prior to the adoption, that her child would have been entitled to SSI, and that her child is a special needs child as a result of being legally blind had they applied on her behalf.
Applicable Law
State Requirements
The Adoption Assistance Program was started in Pennsylvania in response to a series of Federal regulations in which the Federal government agreed to provide financial assistance to any State which promulgated regulations consistent with the Federal regulations. In response to the available Federal funding, Pennsylvania promulgated regulations at 55 Pa. Code §3140.301 et. seq. which specifies the benefits available through the adoption assistance program in Pennsylvania.
Following Federal and State directives, the county agency is required to execute an adoption assistance agreement between itself and prospective adoptive parents at the time of or before the local court issues a final adoption decree. [55 Pa. Code §3140.203(a).]
The adoption assistance agreement must specify benefits and conditions which relate to the adoption including the dollar amount to be paid, the schedule for when payments will be made and the date on which those payments will begin. The regulations specify that the commencement of payments "may not be earlier than the date on which the adoption was finalized ...." [55 Pa. Code §3140.203(b)(2).]
The Pennsylvania regulations specify that to be considered a "special needs" child, an adoptee must have one of the following characteristics:
(i) a physical, mental or emotional condition or handicap.
(ii) a genetic condition which indicates a high risk of developing a disease or handicap.
(iii) be a member of a minority group.
(iv) be a member of a sibling group.
(v) be five years of age or older. [55 Pa. Code §3140.202(b)(4).]
A child is eligible for adoption assistance if the ultimate goal for that child is adoption and if the child is:
1. 17 years of age and younger
2. The parental rights have been terminated under Title 23 Pennsylvania Statutes annotated (Adoption Act)
3. Child is in the legal custody of the county agency or another agency approved by the Department, and
4. Child has one of five characteristics including a physical condition or handicap. [55 Pa. Code §3140.202.]
The county shall make reasonable efforts to place the child without providing the adoption assistance but this subsection does not apply if it is not in the best interests of the child due to extenuating circumstances such as a child that has formed an attachment to the foster parents. [55 Pa. Code §3140.202(c) &(d).]
"A child applying for or receiving adoption assistance or a person acting on behalf of a child has a right to a Departmental hearing to appeal... a finding of ineligibility after determination of eligibility a denial or reduction of service ….the termination or suspension of service. The hearings will be conducted in accordance with Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) unless otherwise provided by this chapter." [55 Pa. Code §3140.210.]
Federal requirements
The adoption assistance agreement must be in accordance with the requirements of §475(3) and must:
1. Be signed and in effect at the time of or prior to the final decree of adoption. A copy of the signed agreement must be given to each party.
2. Specify its duration; and
3. Specify the nature and amount of any payment, services and assistance to be provided under such agreement and specify that the child is eligible for Medicaid services; and
4. Specify, with respect to agreement entered into on or after 10/1/83, that the agreement shall remain in effect regardless of the state of which the adoptive parents are residents at any given time. [45 CFR Ch. XIII (10194 Edition) §1356.40(b).]
It is presumed under the federal regulations that the adoptive parent carries the burden of proving extenuating circumstances and adoption assistance eligibility. [ACYFPIQ9202, dated June 25, 1992.]
The adoption assistance agreement which is entered into between the county agency and the adoptive parents must be in accordance with the Federal regulations, and must, among other details, be signed and in effect at the time of or prior to the final decree of adoption. [45 CFR Ch. XIII (10194 edition) §1356.40(b).]
Grounds for a fair hearing exist if the county agency failed to notify or advise adoptive parents of the availability of adoption assistance for child with "special needs" because the intent behind the promulgation of the adoption assistance program was to encourage the adoption of hard to place children. Notifying potential adoptive parents is the responsibility of the State agency and its administration of the Adoption Assistance Program and, therefore, the failure to notify may be considered an extenuating circumstance which justifies a fair hearing. [Administration on Children, Youth and Families, ACYFPIQ9202, dated June 25, 1992.]
The question of when is the earliest date from which assistance may be provided was dealt with in a policy statement from the Administration for Children and Families under the U.S. Department of Health and Human Services at ACFPIQ92.
"Prior to the passage of the Tax Reform Act of 1986, the statute required that there be an interlocutory or final decree of adoption prior to receipt of adoption assistance. Therefore, after the effective date of a State's Title IVE State Plan, the earliest date from which adoption assistance may be provided is from the time of the interlocutory or final decree of adoption for those children adopted on or before October 1, 1986. As of October 1, 1986, with the passage of the Tax Reform Act of 1986, the requirement that there be an interlocutory decree prior to providing adoption assistance was rescinded and adoption assistance payments may begin when the Adoption Assistance Agreement is signed and the child is placed in the adoptive home.
If a State chooses to pay adoption assistance retroactively from the earliest date of the child's eligibility in accordance with Federal and State statutes, regulations and policies, the State may claim Federal financial participation for this expenditure. For cases in which there was no signed adoption assistance agreement, the earliest date of eligibility would be that of the interlocutory or final decree for assistance provided before October 1, 1986, or placement in an adoptive home for assistance provided after October 1, 1986. States should sign a new agreement backdated to the earliest date of eligibility for the child."
Case Law
A child placed with an adopting family through a private, nonprofit organization such as a private adoption agency may be eligible for adoption assistance, provided that the child meets all other requirements set forth in the regulations. The focus of the agency should be on finding the most suitable family, taking into consideration the best interests of the child. There can be extenuating circumstances present in a case which justifies a waiver of the threemonth "reasonable efforts" requirement. [Adoption ARC, Inc., v. Coin., Dept. of Public Welfare, 727 A.2d 1209 (Pa. Commw. 1999).]
The Pennsylvania law which limits adoption assistance to only those special needs children who are in the legal custody of a county agency or other stateapproved agency is in conflict with the federal Adoption Assistance and Child Welfare Act of 1980. The federal purpose in enacting the law was to enable the state to provide adoption assistance to parents adopting children with special needs. There is no limitation on the federal level to assist only those children in the legal custody of a county agency or other stateapproved agency. [Barczynski v. Com., Dept. of Public Welfare, 727 A.2d 1222 (Pa. Commw. 1999).]
A special needs child was eligible for adoption assistance even though her placement was arranged privately through family members, involved placement in two different states and did not include notification to and approval by the county agency. It is not appropriate to include need for adoption assistance as a criteria when determining the most suitable placement for a special needs child. The county wherein the child was born was an appropriate site for the adoptive mother to request adoption assistance. [Gruzinski v Com., Dept. of Public Welfare, 731 A.2d 246 (Pa. Commw. 1999).]
Attorney Examiner's Opinion
In the instant appeal, the parties agreed that the child, Silvia, was legally blind and that her medical condition qualified her as a special needs child. The parties disagreed over whether Silvia was eligible for adoption assistance on legal grounds. It is the decision of the undersigned that she is eligible for assistance and that Pennsylvania, and Erie County specifically, are the appropriate forums for providing the assistance.
First, it should be noted that the county agency's last argument (concerning the possibility that the adoption process was flawed pursuant to the Interstate Compact agreement) was not considered as an issue by the undersigned. The Bureau of Hearings and Appeals is not empowered to question the legitimacy of the adoption process utilized by the Erie County Court of Common Pleas. In the judicial scheme within the Commonwealth, it is the responsibility of the appellate courts of Pennsylvania to question and, if necessary, correct the actions of the local courts. In addition, the county agency was unable to provide any evidence of a flaw which Appellant, the courtappointed guardian and/or the Erie County Court of Common Pleas violated. Lastly, the county agency did not successfully assert grounds which would enable the Bureau to consider the issue. For those reasons, the undersigned did not consider the issue.
Second, it should be noted that Erie County DHS was correct to deny the assistance request without first insisting upon a hearing. The federal regulations specify that a county agency is not empowered to grant assistance benefits after an adoption decree has been entered. The federal guidelines specify that, if the request for benefits postdates the adoption decree, extenuating circumstances must exist before a hearing can be granted. Only if the extenuating circumstances are present, may the hearing proceed and, if appropriate, may benefits be ordered. The lack of a signed adoption agreement prior to issuance of the final adoption decree is not a fatal omission, according to federal guidelines. What is important is whether there exists any extenuating circumstances, such as a failure by the county agency to inform adopting parents about the availability of the adoption assistance.
This appeal involves a series of extenuating circumstances which did not result directly from a failure by either party. It is the opinion of the undersigned that these circumstances qualify Appellant to receive a hearing pursuant to the federal regulations. The circumstances of Silvia's entrance into the United States, her introduction to Appellant, her placement with Appellant, Appellant's decision two years later to adopt her, Sylvia's medical conditions and her extensive continuing need for medical treatment, all qualify, in the mind of the undersigned, as extenuating circumstances.
The third issue was the lack of opportunity afforded to the county agency for locating an adoptive home which would not require the adoption assistance. The county agency had no actual notice of this child. The courts in Erie County, which are vested by statute with separate, concurrent and broad jurisdiction, did have actual notice of the child and her medical condition. Unfortunately, the local court is not charged under federal or state regulations with informing prospective adoptive parents concerning the availability of the adoption assistance program. That responsibility is carried solely by the Department of Public Welfare and its county agencies. Appellant did not decide to adopt Silvia until almost two years after Silvia came to reside with them. By that time, the bond between Silvia and her foster parents was apparently strong. Presumably, any break in that bond would not have been in Silvia's best interest.[1] As Commonwealth Court's recent decisions illustrate [2], the opportunity to locate a home not requiring assistance is not the deciding criteria for determining the most suitable home for a child with special needs. To agree with the county agency and deny adoption assistance to this child simply because the county agency did not have actual notice of her existence seems contrary to the purpose of the assistance program and contrary to case law in Pennsylvania.
Fourth, the county agency argues that assistance was rightfully denied because the child was not in the legal custody of either the county agency or a state approved agency. This proposition was specifically rejected by the Commonwealth Court in the Barczynski decision wherein Commonwealth Court held that Pennsylvania's regulation at §3140.202 was unlawful as contrary to the Federal regulations. The fact that Silvia was placed through private contacts and through a private, nonprofit agency located out of the State does not form an adequate basis for a denial.
Both parties agree that Silvia is a special needs child with a serious medical condition that requires ongoing medical treatment and rehabilitation in order to teach and enable her to be a productive member of her society. The undersigned is convinced Appellant requested assistance from the correct county agency. Silvia qualifies under the regulatory definition for a special needs child. She qualifies under all of the categories listed under the Pennsylvania regulations with one exception: she was not a member of a sibling group.
It should be noted that there were numerous contacts between the child, her guardian ad litem, the local courts, the Department of Public Welfare [3], and Erie County offices. These contacts are in excess of the legal contact which exists between Silvia and any other jurisdiction. It is difficult to imagine that any other county agency within this State or any other State would be willing or able to authorize payment for the child. No other county or state had any legal involvement with Silvia. As a result of the initial purpose for her entry into the country, the Connecticut private foster care agency labored on Silvia's behalf without the benefit of a court order or authorization. If adoption assistance is not provided to this child through Erie County, presumably no other county agency in the United States could or would.
Erie County DHS argues that Connecticut should be responsible for the payment of the adoption assistance but Connecticut has no knowledge, actual or implied, as to the existence or condition of this child. Erie County Court of Common Pleas accepted jurisdiction over this child and that court is a court of competent jurisdiction that is vested with the authority to decide which State and county is best equipped to address Silvia's best interests. Appellant met her burden of proof in this appeal.
Fifth, although not argued by the county agency, one of the reasons stated for the initial denial was the foreignborn status of the child. A review of the federal and state regulations fails to reveal any prohibition against providing assistance for a foreignborn child who has special needs and is adopted in the United States by U.S. citizens. The federal regulations do indicate that the nationality of the adopting parent should not prohibit receiving assistance. ased upon those provisions, it is the opinion of the undersigned that the nationality of the adoptee should, likewise, not prohibit the receipt of assistance.
The county agency's actions deprived this child of adoption assistance solely because Appellant and her husband fell in love with a foster placement. This child qualifies as a special needs child under five qualifying conditions listed in the state regulations. Appellant never attempted to circumnavigate the rules in order to make child qualify for assistance. Erie County authorities were aware of this child and her special condition. Unfortunately, those county officials who did know, did not notify the officials at DHS.
The Department argued that it should not be responsible for adoption assistance when no one notified it officially that the child was placed within Erie County. The reality of the instant appeal is that Erie County Court of Common Pleas assumed jurisdiction over this child. Erie County Court of Common Pleas ensured that Appellant's home was appropriate for this child. Erie County Court of Common Pleas found that Appellant pursued the adoption in an appropriate and legal manner. Erie County DHS may not think that it was fairly or adequately notified but a court of law, vested with separate, concurrent and broad power, is not restricted or limited by the rules which are promulgated by the Department of Public Welfare. [In re Lowry, 506 Pa. 121, 484 A.2d 383 (1983).] Erie County Court of Common Pleas obviated the requirement of Erie County DHS to locate an adoptive home which would not request adoption assistance.
It does not seem fair, however, to require the county agency to pay assistance back to the date of adoption for this child. Therefore, it is the decision of the undersigned that Appellant is granted adoption assistance retroactive back to the date of her request in May 1999. The adoption assistance should be the monthly stipend available in Erie County at the basic foster care rate and should also include medical assistance and a quarterly clothing allowance.
Therefore, for all the foregoing reasons, it is the decision the undersigned that the appeal of Appellant is sustained. The Erie County DHS is ordered to pay Appellant a monthly stipend equal to its standard foster care rate, to provide a quarterly clothing allowance and to issue a medical assistance access card to Appellant for the child, retroactive to May 7, 1999.
APPEAL OF: Wendy Buzzanco
Adoption Subsidy
Docket No: 7599013
It is hereby ORDERED and DECREED that the appeal of Appellant is sustained and the Department is directed to pay adoption assistance benefits to Appellant, retroactive to May 7, 1999.
Katrina L. Dunderdale
Regional Director
Date: March 10, 2000
1 It should be noted that the Bureau of Hearings and Appeals is not vested with the power to determine, as a matter of law, the "best interests" of a child, especially as that term is defined currently.
2 See Adoption ARC Inc v DPW, Barczynski v DPW, and Gruzinski v DPW, supra.