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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
KATHY-JO GRUZINSKI, Petitioner v. DEPARTMENT OF PUBLIC WELFARE, Respondent
No. 340 C.D. 1997
Submitted: May 6, 1998
BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE JOSEPH T. DOYLE, Judge
HONORABLE DORIS A. SMITH, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE JIM FLAHERTY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
OPINION BY JUDGE FLAHERTY
FILED: June 7, 1999
Kathy-Jo Gruzinski (Gruzinski) petitions this court to review a final order of the Secretary of the Department of Public Welfare (DPW), denying her request for adoption assistance for her adopted minor daughter, Laura Lynn Morrison Gruzinski (Laura or child). We reverse.
Laura was born with a cleft palate, cleft jaw and a cleft lip to Suzanne Morrison (Birth Mother) in Beaver County, Pennsylvania on November 25, 1984. Three days later, on November 28, 1984, because Birth Mother was mentally disabled and unable to care for Laura, the Court of Common Pleas of Beaver County, Juvenile Division, (trial court), placed Laura into temporary foster care with a member of the Board of Directors of the Beaver County Children and Youth Services (CYS).
Initially, regular visitation between Birth Mother and Laura was scheduled with the foster parents while Birth Mother was attempting to develop parenting skills.
On January 4, 1985, the trial court adjudicated Laura a dependent of the Commonwealth and remanded her to foster care.
In May of 1985, CYS informed Birth Mother that CYS would take necessary action to terminate her parental rights for the purpose of permanently placing Laura with the temporary foster parents. CYS then filed a petition with the trial court, recommending that Laura be permanently placed with her foster parents for purposes of adoption.
In response to this action by CYS, Birth Mother's brother, Scott Morrison, and his wife, Vanessa (the Morrisons), who resided in Connecticut, determined that they wanted to adopt their niece, Laura.
In May of 1985, the Morrisons filed with the trial court in Beaver County a Petition to Intervene and Change Custody Recommendation, requesting placement of Laura with them for foster care and subsequent adoption in the Connecticut courts. After the completion of a favorable home study evaluation of the Morrison's home (through the Interstate CYS system), the trial court, by order dated October 24, 1985, set aside the recommendation of CYS and placed Laura with the Morrisons in order for them to pursue adopting her in the state of Connecticut. This October 24, 1985 order did not specifically terminate the responsibilities of CYS, but further required that the child remain under the protective supervision of the Beaver County Juvenile Probation Department pending completion of adoption proceedings in Connecticut.
During the pendency of the adoption proceedings in the trial court, the father's parental rights were terminated by a Decree dated September 5, 1987 and the Birth Mother's parental rights were terminated by a Decree dated November 9, 1989.
Although CYS advised the Morrisons that Laura was a child with special needs, CYS did not advise the Morrisons of the potential availability of adoption assistance. The Morrisons pursued the adoption of Laura in Connecticut, but before the adoption could be finalized, the Morrisons separated and divorced. In order to keep Laura in the family, the Morrisons privately placed Laura with Scott Morrison's sister (Laura's aunt), and her husband, who resided in Ohio.
Shortly after Laura began residing with the Gruzinskis, Gruzinski applied for and received AFDC assistance for Laura in the form of medical aid and $199 cash monthly. (C.R. at C53.)
Laura was formally adopted by Gruzinski and her husband on December 6, 1989, by a final decree issued by Judge Reed of the Beaver County trial court.
From the time that Laura was placed with the Morrisons in 1985, until Gruzinski contacted CYS for adoption assistance in May of 1995, CYS had no additional contact with Laura or any of the fostering or adoptive parents. However, there is no evidence that CYS was precluded from being involved. The evidence indicates that CYS chose not to continue to be involved in the processes, since their adoption recommendation was denied by the trial court.
After Gruzinski discovered from private sources that because of Laura's disability, Laura was eligible for further assistance in the form of adoption assistance, Gruzinski telephoned CYS and requested adoption assistance. After being verbally denied for the adoption assistance by CYS, Gruzinski formally requested the Adoption Assistance and an Administrative Fair Hearing (Fair Hearing) by a letter to DPW dated April 8, 1995, and by a follow-up letter to CYS dated May 8, 1995. CYS then formally denied the request by letter to Gruzinski dated May 11, 1995, and scheduled the Fair Hearing.
The Fair Hearing was held on September 27, 1995 at the Office of Hearings and Appeals in Pittsburgh by telephone. The Fair Hearing was conducted by Hearing Officer Ann Strong (Hearing Officer). At the Fair Hearing, CYS was represented by legal counsel and the Director of CYS appeared and testified on behalf of CYS in support of a denial of Adoption Assistance.
On behalf of Laura, Gruzinski appeared pro-se. Scott Morrison, and their expert on adoption assistance, Tim O'Hanlon also appeared and testified. At the conclusion of the testimony, the Hearing Officer accepted further documentation from Gruzinski on October 3, 1995, and from Tim O'Hanlon on October 10, 1995 and entered the documents into the record.
On July 15, 1996, Attorney Examiner Katrina Dunderdale of DPW assumed jurisdiction over the appeal and, after having reviewed the testimony and exhibits, prepared Findings of Facts and a Recommendation and Order for DPW (the Recommendation), recommending that DPW provide Adoption Assistance to Gruzinski on behalf of the child.
DPW adopted the Recommendation in its entirety and entered an order on September 25, 1996 to provide Adoption Assistance to Gruzinski. CYS filed a request for reconsideration with DPW (Request for Reversal) which was granted on October 4, 1996. Gruzinski then filed her response on October 18, 1996, in which Gruzinski outlined with great detail facts material to the outcome that CYS had represented as true, but were, in fact, very inaccurate.
After presumably reviewing the entire record (as was indicated by their order granting reconsideration), DPW entered a Final Order on the Merits dated January 7, 1997, reversing its original order and denying adoption assistance to Laura for two reasons: 1) that the child was not eligible for adoption assistance since CYS had located adoptive parents that did not require adoption assistance, and 2) because Gruzinski failed to present evidence that the child qualifies for adoption assistance under the regulations at 55 Pa. Code §3140.202(c). This appeal followed and we now reverse.
Appellate review of an administrative order is limited to determining whether a constitutional violation, an error of law or a violation of the administrative agency procedure has occurred and whether the necessary findings of fact are supported by substantial evidence. Northampton Convalescent Center v. Department of Public Welfare, 550 Pa. 167, 703 A.2d 1034 (1997), interpreting 2 Pa. C.S. § 704. If the appellate court reverses the agency adjudication, the appellate court cannot award relief which could not have been awarded by the lower tribunal or agency. Northampton, citing In re Leopardi, 516 Pa. 115, 123, 532 A.2d 311, 315 (1987) (interpreting 42 Pa. C.S. § 706, relating to the disposition of appeals, and its effect on appeals brought under the Administrative Agency Law).
This Court has undertaken a full and complete review of the entire certified record. In doing so, it was noted that the Secretary of DPW, in making the Final Order, did not accompany the Final Order with a separate opinion. In some circumstances, such a situation would require a remand to the agency for more specific findings or reasonings in order to produce effective appellate review. However, in the instant matter, remand is not necessary. Although a more detailed opinion would have made appellate review in this instance more economical, the record before us is sufficient to permit effective appellate review.
While all sectors of the necessary findings and reasons are not conveniently contained in one document, DPW, as an agency, has entered into the record, in separate documents, its findings of facts and the basis upon which their Final Order was entered. The apparent absence of a logical chain of events from the facts to the conclusion is missing in the Final Order, thus rendering that Final Order illogical, contrary to law, contrary to the administrative regulations, and contrary to reason.
On appeal Gruzinski asserts that DPW erred in its decision as a matter of law because 1) the child meets all of the criteria for adoption assistance under the Pennsylvania regulations; 2) CYS originally wrongfully denied adoption assistance benefits by requiring that only those children who were actually placed by CYS to be eligible for adoption assistance, in contravention of U.S. Department of Health and Human Services' (DHHS) Policy Interpretation Question (PIQ) PIQ 87-05; 3) Gruzinski presented such substantial evidence of eligibility for Adoption Assistance, that DPW's own Attorney Examiner found substantial evidence to enter such findings into the record and to recommended Adoption Assistance be granted the Gruzinskis; and 4) prior to the reconsideration, and without taking any further evidence and without a basis for denying benefits the DPW found substantial evidence to support granting benefits and there is no substantial evidence in the record to support a denial of benefits.
DPW asserts that adoption assistance must be denied where "an appropriate" adoptive home was available where adoption assistance payments would not be needed.
DPW has misinterpreted the federal law in this area. Based upon the federal government's official interpretation of the federal regulations of this program, this court holds that the local agency must first find, not just "an appropriate" adoptive home, but must first "locate the most suitable family for the child," without regard for whether or not the most suitable family does or does not require any form of assistance.
DPW fails to recognize the entire purpose for the Adoption Assistance Program (Program). The Program was designed to promote the "best interests of the child" principle by first locating the most suitable family and then determining whether or not adoption assistance is appropriate. DHHS has determined therefore, for the administration of its own program through the States, that whether or not adoption assistance is required by a family is not a criteria for determining the most suitable family for placement.
Therefore, in accordance with the regulations at 55 Pa. Code §3130.36 relating to the administration of the various counties' Children and Youth Services agencies, the direction that, "[t]he county shall actively seek ways to promote the adoption assistance program as set forth in Chapter 3140 Subchapter C (relating to adoption assistance)" requires that CYS utilize all available federal policy interpretations if it enables a greater number of adopted children to benefit from this federally funded program. In this instance, we adopt the federal policy interpretations PIQ 87-05 and PIQ 92-02 as being indicative of the standard required of state and federal law on adoption assistance.
Beaver County is the appropriate site for Gruzinski to apply for Adoption Assistance. During Laura's residence in Connecticut and Ohio, prior to the final decree of adoption, Laura was still under the jurisdiction of the Beaver County Court and Birth Mother's parental rights had not been terminated. When Birth Mother voluntarily terminated her parental rights, the termination agreement was reviewed by the court in Beaver County. The petition for adoption was also filed with the Beaver County Court, which subsequently entered the decree.
Further, in accordance with 55 Pa. Code §3140.202(a), Pennsylvania Department of Human Services (DHS) issued a policy interpretation which stated that, in Pennsylvania, the sole and final determination of the eligibility for a child's Adoption Assistance subsidy is made by county agencies in the county of a Birth Mother's permanent residence. Based upon the testimony of Gruzinski's expert, Tim O'Hanlon, the DHS interpretation appears to be based upon a Commonwealth issued caseworker's guide which in turn reflects the definition of "eligible child" and "local authorities", as defined for the adoption subsidy program in Pennsylvania's Adoption Opportunities Act.
Laura first became eligible for Adoption Assistance after Birth Mother's parental rights were terminated on November 9, 1989 since at that time, Laura continued to be under court supervision of the Beaver County Juvenile Probation Department. The Beaver County trial court adjudicated Laura a dependent child, kept her under court supervision with her placement with the Morrisons, never relinquished their court supervision of Laura while they reviewed the termination of parental rights and did not relinquish their supervision of this child until the trial court eventually issued the final adoption decree on December 6, 1989.
Based upon the testimony of the CYS representatives at the Fair Hearing, the CYS officials confused and conflated the agency's responsibility for children under its care with its responsibility for certifying a child's eligibility for Adoption Assistance under 55 Pa. Code §3140.202(a). In Pennsylvania, the county agency is responsible for determining the Adoption Assistance eligibility not only for children who are in their care and custody, but for all children. Children may be eligible for Adoption Assistance if they are under the supervision of any county institution district, including the county courts. In order to promote the purposes of the Adoption Opportunities Act, other children who are not in the care of a public agency, the types of private placement children discussed in DHHS PIQ 87-05 may also be eligible for this federally funded program.
Where the definition of an "eligible child" in 62 P.S. §772 would preclude any child who is otherwise eligible under the federal program guidelines from being denied federal benefits under Title IV-E because a child was not in the care, custody or control of the state, the definition is contrary to the federal law and the federal program guidelines which fund the Adoption Assistance program.
Specifically, DHHS states in its Policy Interpretation Question
PIQ 87-05 that,
Title IV-E does not require that States, in all cases, have responsibility
for placement and care (or custody) of a child as a prerequisite
to adoption assistance under the Federal program. Further, there
are no title IV-E provisions which would allow States to attach
eligibility requirements for adoption assistance under that title
in addition to those cited in the Federal statute.
….
… State statutes which limit access to the
Title IV-E Adoption Assistance Program by the addition of
eligibility requirements beyond those required under
the Federal statute are not in conformance with title IV-E.
The Act establishes the eligibility criteria in section 473(a)(2)
as the sole criteria. It does not set forth the listed criteria
as minimums or as examples of eligibility criteria.
The eligibility requirements for the Adoption Assistance Program
are found in section 473(a)(2) of the Act. While this section
references the requirements of the title IV-A AFDC program, the
title IV-E foster care program, and the title XVI SSI program,
it does not specify, in addition, that a child must be under the
legal custody or responsibility of the title IV-E administering
agency, through commitment or relinquishment to be eligible for
title IVE adoption assistance.
While it is necessary for a child to be under the responsibility
of the State agency in order to be eligible for title IV-E foster
care (section 472(a)(2) requirement), there will be other situations
in which children with special needs are in care under the responsibility
of private, non-profit agencies without the involvement of the
State agency. When adoption is the goal for such children, and
they are determined to be AFDC- or SSI-eligible, the tittle IV-E
agency may not exclude them from consideration or approval, if
they are otherwise found eligible for adoption assistance in accordance
with section 473.
If a State does not have responsibility for placement and
care of the otherwise eligible child, the child may be eligible
for title IV-E adoption assistance under any of the following
circumstances:
1. At the time the adoption petition is filed, the
child is eligible for AFDC while living with a specified relative
(section 473(a)(2)(a)(I));
2. The child meets the eligibility requirements for the SSI
program prior to the finalization of the adoption (section 473(a)(2)(A)(ii);
3. The AFDC-eligible child is placed in foster care through
a voluntary placement agreement (or relinquishment) with a private,
non-profit agency (no title IV-E payment is made) and a judicial
determination is subsequently made (following an initiation of
court proceedings within six months of removal of the child from
the home of a relative) to the effect that continuation in the
home would be contrary to the welfare of the child. This action
would satisfy the requirements in section 473(a)(2)(A) (i) and
473 (a)(2)(B)(ii)(II) and the child would be considered judicially
removed.
In any of the above circumstances, the adoption assistance agreement
must be negotiated between the prospective adoptive parents and
the State title IV-E agency, with the involvement of other relevant
agencies, as appropriate (section 475(3)). (Emphasis added.)
Policy Interpretation Question, Log No. ACF-PIQ-87-05,
U.S. Dep't Health and Human Services, Administration for Children
and Families, Issued December 17, 1987 (PIQ 87-05)
Laura meets the requirements specified in PIQ 87-05. At the time the adoption petition was filed, Laura was eligible for AFDC while living with a specified relative, her aunt, the adoptive mother, Kathy Jo Gruzinski. Laura, in fact, received AFDC payments while living with the Gruzinskis prior to the adoption, even though actual payments are not necessary in order to meet the AFDC relatedness standard for Title IV-E adoption assistance. 42 U.S.C. §673(a)(2)(B) indicates that a child meets the AFDC relatedness requirement if (i) AFDC payments had been made or (ii) the child would have been eligible to receive AFDC payments "had application been made . . . ."
The purpose of DHHS PIQ 87-05, like all federal Policy Interpretations, is to interpret existing federal law. The 1987 PIQ 87-05 was issued well in advance of Laura's finalized adoption in 1989. In this instance, both CYS and DPW seem reluctant to apply the federal law and official interpretations thereunder to a federally funded program. We find no basis in the law that they can make a decision that is contrary to the Federal Policy Interpretations while administering monies provided by the Federal government.
Adoption Assistance is usually granted at the time of the adoption. Here, Gruzinski did not apply for Adoption Assistance until 1995, six years after the adoption. DHHS PIQ 92-02 sets forth some grounds on which an adopted child's eligibility for adoption assistance should be reconsidered after the adoption has been finalized. One of these situations for reconsideration includes a "failure to advise adoptive parents of the availability of adoption assistance" as an "extenuating circumstance" that may entitle the child to a reconsideration of eligibility.
Laura and her adoptive family should not be penalized because the Gruzinskis never had a legitimate chance to apply for adoption assistance before finalization, especially since CYS had a duty to notify the original prospective adoptive parents, the Morrisons, of Laura's eligibility for adoption assistance and failed to do so.
Federal rules, specifically 45 CFR §1356.40(f) require state agencies to "actively seek ways to promote the adoption assistance program." See also 55 Pa. Code §3130.36(b)(2) (the county shall actively seek ways to promote the adoption assistance program as set forth in Chapter 3140).
DHHS PIQ 92-02 was issued to allow children such as Laura an avenue of redress when the local agency fails in its obligation to promote the program. This is specifically addressed in PIQ-92-02 which sets forth that, "it is the responsibility of the fair hearing officer to determine whether extenuating circumstances exist and whether the applicant or recipient was wrongly denied eligibility." (C.R. at C152.)
This case meets the federal criteria for extenuating circumstances cited in DHHS PIQ 92-02 and this Commonwealth and the local agency should be bound by the federal guidelines and should welcome the opportunity to provide this much needed and deserved entitlement. Most importantly, however, CYS and DPW are bound by the determination of the Fair Hearing officer, who found Laura eligible.
PIQ 92-02 further outlines the earliest date from which adoption assistance may be provided after the legalization of an adoption. In this instance, because the adoption was finalized after October 1, 1986, adoption assistance payments may be granted when the child is placed in the adoptive home, even prior to a final decree of adoption. This is true in this instance even for retroactive payments.
A child is eligible for Adoption Assistance in Pennsylvania 1)
if the ultimate goal for that child is adoption and 2) if:
1. The child is 17 years of age and younger;
2. The parental rights have been terminated under the Adoption
Act of the Domestic Relations Code (Adoption Act);
3. The child is in the legal custody of the county agency
or another agency approved by the Department;
4. The child has one of five special need characteristics,
including a physical condition or handicap.
55 Pa. Code §3140.202.
Two additional factors must be present before a child is eligible
for adoption assistance:
1. The child's removal from the home is the result of a judicial
determination that continuation in the home is contrary to the
child's welfare, or there is a voluntary placement agreement;
and
2. At the time the petition which seeks removal from the
home was filed, or the voluntary placement agreement was signed,
the child met the Aid for Families with Dependent Children (AFDC)
relatedness test.
55 Pa. Code §3140.205.
The Certified Record indicates that Laura meets all of the criteria for eligibility of adoption assistance, which is consistent with the determination of the Fair Hearing Officer, Attorney Examiner Katrina Dunderdale. (C.R. at C174-180.)
The Federal program guidelines as interpreted by PIQ 92-02 indicate that DPW and CYS are bound by the determination of the Fair Hearing officer, for which we find substantial evidence in the record and in the law to support that determination. Laura meets the eligibility requirements of the Adoption Assistance program; there are sufficient extenuating circumstances to enforce such eligibility nunc pro tunc as provided under the federal and Commonwealth regulations. The Commonwealth Department of Public Welfare and the Beaver County Children and Youth Services is the proper forum to administer the benefits.
Therefore, we conclude that Laura is eligible for Title IV-E adoption assistance retroactive to the first instance where Laura was residing with the adoptive mother and the Birth Mother's parental rights were terminated, which date is December 10, 1989.
In accordance with the attached order, we instruct the Department
of Public Welfare and the Beaver County Children and Youth Services
to provide Laura Gruzinski with all available adoption assistance
for which she was and is eligible, retroactively back to December
10, 1989.
JIM FLAHERTY, Judge
Judge Leadbetter dissents.
CONCURRING OPINION
BY JUDGE FRIEDMAN FILED: June 7, 1999
I cannot join the opinion of the majority because I believe that
the issues discussed in Parts II through IV have not been raised.
However, based on Parts I and V of the majority opinion and this
court's decision in Barczynski v. Department of Public Welfare,
___ A.2d ___ (No. 1487 C.D. 1998, Pa. Cmwlth., filed April 15,
1999), I concur in the result.
ROCHELLE S. FRIEDMAN, Judge
Judge Pellegrini joins in this concurring opinion.