Legal Decisions: Adoption Assistance

COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO

IN THE MATTER OF BRIA SADDLER, Appellant
v.
OHIO DEPARTMENT OF HUMAN SERVICES, Appellee

CASE NO. 99CVF­O8­6471

JUDGE O'GRADY

DECISION AND JUDGEMENT ENTRY REVERSING THE DECISION OF THE OHIO DEPARTMENT OF HUMAN SERVICES

Rendered this day 4^th of April, 2000

O'GRADY, J

This case is before the Court on a R.C. 119.12 appeal from the Decision of the Ohio Department of Human Services (ODHS) denying Adoption Assistance (AA) benefits to Appellant...

Bria Saddler is a 12-year old child who, on February 12, 1988, was placed for adoption with Lutheran Social Services by her natural mother. At that time, she signed an agreement for temporary custody of Bria. Bria was placed with her adoptive ,mother, Kelly Saddler, and the adoption became final on May 19, 1989 after the biological mother permanently surrendered the child. On March 8, 1999, Kelly Saddler applied for AA benefits on behalf of her daughter. The benefits were initially denied because the Franklin County Children's Services' Hearing Officer [1] found that no judicial determination of best interests of the child had been made within 180 days of the custody arrangement. Ms. Saddler appealed and ODHS upheld the denial. The case is now before the Court for review of that Decision.

The AA program was implemented to provide assistance to those children who have special needs and are therefore less likely to be adopted. In Ohio, the eligibility requirements are found in OAC 5101:2­47­31:

A child must meet aid to families of dependent children (ADC) eligibility requirements as. described in rule 5101:2-47-2-02 of the Administrative Code, or the eligibility requirements for supplemental security income (SSI) to qualify for Title IV­E adoption assistance (AA).

The parties agreed that while Bria met the .ADC requirements, she did not meet the SSI requirements. Ms. Saddler claims, and the Hearing Examiners found, that she was not aware that she could apply for AA at the time of the adoption and that she had no way of knowing until recently that Bria was a special needs child [2] based on attention deficit disorder.

The Hearing Examiner found that Bria was ineligible for AA benefits, despite the fact that she qualified for ADC, based on OAC 5101:2­47­32 because there was no finding that the adoption was in Bria's best interests at the time of her adoption. The applicable rules read as follows:

(B) The following criteria apply to a determination of eligibility for the initial AA agreement:

(1) The child must meet one of the following:

(a) SSI eligibility requirements pursuant to rule 5101:2­47­31 of the Administrative Code; or

(b) ADC­relatedness in accordance with the requirements of rule 5101:2­47­31 of the Administrative Code.

(2) Procedural safeguards in the form of a judicial determination to the effect that continuation in the home is contrary to the child's best interest or that the placement of the child is in the child's best interest must be met in accordance with rule 5101:2­47­32 of the Administrative Code. Such judicial determination is not required in order to meet eligibility standards for AA if the child meets the SSI eligibility requirements or is living with a specified relative at the time the specified relative petitions the court to adopt the child. [OAC 5101:2­47­29]

(B) If the child is removed from the individual with legal responsibility and placed in the custody of a PCSA or PCPA through an ODHS 1645 "Agreement for Temporary Custody of Child," there must be a judicial determination, within one hundred eighty days from the date on which the agreement is completed, to the effect that continuation in the home' is contrary to the best interest of the child or that the placement is in the best interest of the child, except in cases where a child meets the provisions of paragraph (D) of this rule.

(C) If the child is removed from the home and placed in the custody of a PCSA or PCPA through an ODHS 1666 "Permanent Surrender of Child," the PCSA or PCPA must, within one hundred eighty days from the date of placement, petition the court for a judicial determination to the effect, that continuation in the home is contrary to the best interest of the child or that the placement is in the best interest of the child. The judicial determination must be made prior to the final decree of adoption, except in cases where a child meets the provisions of paragraph (D) of this rule.

(D) A judicial determination of best interest is not required for Title IV­E adoption assistance eligibility in cases where the child meets SSI eligibility pursuant to rule 5101:2­4731 of the Administrative Code or is living with a specified relative at the time the specified relative petitions the court to adopt the child. [OAC 5101:2-47-32]

A careful look at the clear language of the statute reveals that these two rules apply only to applications for AA which take place at the time of the adoption. [Emphasis opn 5101:2­47­29 mine]

The state hearing examiner correctly found that it is Rule 5101:2­47­35 (entitled Adoption assistance eligibility procedure: Post­finalization application) which applies to the application before ODHS:

(B) .The PCSA shall consider eligibility for AA after finalization and negotiate an ODHS 1453 "Adoption Assistance Agreement" with the adoptive parent(s) in accordance with the provision of rules 5101:2­47­36 and 5101:2­47­42 of the Administrative Code if all of the following conditions are met:

(1) An ODHS 1451 was not completed or an ODHS 1453 was not executed prior to the final decree of adoption due to one of the following extenuating circumstances.

(a) Information about the child's special needs, other facts relevant to the child's eligibility for AA, or information about the AA program was not presented to or was otherwise unavailable to the adoptive parent(s) prior to the final decree of adoption; or

(b) The child manifested a physical, mental, developmental, or emotional condition after the final decree of adoption as a result of factors in the child's medical history or background of the child's biological parents that existed prior to the final decree of the adoption; or

(c) An administrative error prevented an AA agreement from being signed prior to the final decree of adoption on behalf of an otherwise eligible child.

(2) The state hearing decision determines that one or more of the extenuating circumstances set forth in paragraph (B) (1) of this rule were present; and the state hearing decision, as a result of the information provided by the PCSA, determines that the conditions set forth in Paragraphs (B) (3) and (B) (4) of this rule also have been et, or the state hearing decision orders the PCSA to reconsider eligibility for AA by determining if the conditions set forth in paragraphs (B) (3) and (B) (4) of this rule have been met.

(3) The child meets all of the remaining eligibility requirements for AA set forth in Chapter 5101:2­47 of the Administrative Code except for the timeliness standard, which requires that an OD14S 1451 be made and an ODHS 1453 be signed prior to a final decree of adoption.

There is evidence that the mother was unaware of the AA program at the time of the adoption. There is also evidence that the child is a special needs child solely by virtue of being a member of a minority. [3]

The final decree was after October 1, 1982. The analysis made by both the state hearing examiner and ODHS' hearing examiner, concluding that the application was properly denied, was based on OAC 5101:2-47-35 (B) [4] The Court finds that their reading of the rule is incorrect, or if correct, wholly, unfair. The hearing examiners found that the fact that there was no judicial determination that the adoption was in the "interests" of the child amounts to a failure to meet all of the factors under OAC 5101:2-47 as required by OAC 5101:2-47-35(B). Clearly section 35 is meant to be read separately from 32 because 32 deals with an application which occurs simultaneous with the adoption and 35 deals with an application for AA after finalization because of "extenuating circumstances", in the instant case lack of knowledge by the adoptive parent (because of ODHS' failure to inform her). First, section 32 has no application to a situation after finalization of the adoption. Support for that is found in OAC 5101:2-47­28:

(A) The ODHS 1451 "Adoption Assistance Application/ Determination of Continuing Eligibility" and the ODHS 1453 "Adoption Assistance Agreement" must be completed in accordance with rule 5101:2­47­03 of the Administrative Code prior to the final decree of adoption, unless the circumstances specified in rule 5101:2­47­35 of the Administrative Code apply. [Emphasis mine]

Additionally, ODHS is under a duty to inform the adoptive parent of these benefits and to help them to complete the application:

The PCSA shall ensure that the adoptive parent(s) receives an ODHS 1451 and shall assist the adoptive parent(s) in applying for AA, including assistance with completion of the application. [OAC 5101:2­47­28(B)]

and

(G) The PCPA shall ensure that the adoptive parent(s) receives an ODHS 1451 and shall assist the adoptive parents) in submitting the completed application to the appropriate PCSA. The PCSA shall process the PCPA AA application in accordance with the requirements of this rule.

Therefore, even if the judicial determination of best interests is a prerequisite to the right to benefits, which the Court holds it is not in applications made pursuant to OAC 5101:2­47­35, the State (ODHS or Lutheran Social Services, the PCPA) is responsible for error which occurred here and the deprivation that this family has suffered for twelve years.

Appellant asserts that she is entitled to retroactive benefits due to the State's error. OAC 5101:2­47­35(C) provides for the usual situation:

© If all of the conditions set forth in paragraph (B) of this rule are met, the effective date for AA shall be the date on which the ODHS 1453 is signed by the PCSA and the adoptive parents.

Given that ODHS had a mandatory duty to provide Appellant the information which would have resulted in this child receiving adoption assistance and in the court making a judicial determination of best interests, this Court agrees with Appellant that the benefits should be retroactive to the time of the adoption when an application most surely would have been made but for the omissions of the ODHS and/or PCPA personnel.

For the reasons contained in this Decision, this case is REVERSED and REMANDED to ODHS with instructions to provide AA benefits to this child.

James J. O'Grady, Judge

1 Franklin County Children's Services through Lutheran Social services is a public child placement agency (PCPA).

2 OAC 5101:2-47-29 provides: (A) The following criteria must be met to be eligible for adoption assistance (AA): (1) The child must be a special needs child as defined in rule 5101:2-47-30m of the Administrative Code;

3 Bria is black. OAC 5101:2­47­30 defines special needs child in pertinent part as follows: (B) The PCSA or PCPA determines the child has a specific factor or condition(s) which indicates that in order to complete or sustain the adoption or ensure that the child's special needs are met, it is not in the child's best interest to be placed with an adoptive parents) without the provision of AA and/or medical assistance. A specific factor or condition shall include at least one of the following: (2) is a member of a minority or ethnic group.

4 Surprisingly, this section has never been interpreted by the state courts. Neither counsel have cited any cases nor did the Court's own research turn up any specific to this issue.