Legal Decisions: Adoption Assistance

IN THE SUPERIOR COURT OF RICHMOND COUNTY

STATE OF GEORGIA

WILLIAM AND MELODY SANDERS (Petitioners),

V.

GEORGIA DEPARTMENT OF HUMAN RESOURCES, OFFICE OF ADOPTIONS (Respondent).

ORDER

Before the Court is Petitioners' petition for judicial review of an administrative decision. Respondent has also filed a motion to dismiss alleging Petitioners have failed to exhaust their administrative remedies. A hearing on all issues was held on July 20, 2001, at which all pies were present.

This litigation arises out of Petitioners' request for adoption assistance funds under O.C.G.A. § 49-5-8 (a)(6)(F). The primary issue asserted by the Petitioners in this appeal is whether the Administrative Law Judge (A.L.J.) violated constitutional or statutory provisions in denying their request for payment of adoption, assistance funds retroactive to the date they adopted their [child]. To fully understand the parties' positions, a brief review of the procedural and factual history (1) of this case is necessary.

FACTUAL AND PROCEDURAL HISTORY

On [month] 1995, the minor child was born. The Department of Human Resources (the Department), through its Department of Family and Children's Services (DFCS), took custody of the child, and on February 19, 1996, placed him with the Petitioners. Prior to placement the infant was diagnosed as "healthy" by Dr. Moberg-Wolf On January 31, 1997, the Sanders; executed an "affidavit of disclosure for adoption" stating they had been provided with copies of all medical records on the child. This affidavit also states the child is not eligible to receive adoption assistance benefits and that the Sanders were waiving any adoption assistance benefits by signing the agreement. The Sanders petitioned the court for adoption of the child that was finalized by an order dated July 24, 1997.

In early February 2000, the child was diagnosed with Fetal Alcohol Syndrome (FAS). The Sanders immediately filed fox adoption assistance that the Department denied. The Sanders appealed, and immediately prior to a full evidentiary hearing the Department agreed to extend assistance benefits to the Petitioners retroactive to February 2000, the date of the first application. A full evidentiary hearing was held before the Honorable M. Patrick Woodard, Jr. on the remaining issue of whether the benefits should be retroactively granted to the date of adoption, i.e. July 24, 1997. The A.L.J_, in a decision entered on January 18, 2001, denied Petitioners' request fox benefits prior to the date of application. Petitioners timely filed motion for reconsideration which was denied on February 26, 2001. They filed their request for review with this court on March 28, 2001.

MOTION TO DISMISS

This court first turns to Respondent's motion. to dismiss in which the Department asserts this court lacks subject matter jurisdiction because Petitioners have failed to exhaust their administrative remedies under O.C.G.A. § 50-13-19(a). This statute provides that "any person who has exhausted all administrative remedies within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. This code section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief or trial de novo provided by law. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy." (Emphasis Added).

In Hilton Construction Co. v. Rockdale County Bd. Of Ed., 245 Ga. 533 (1980), our Supreme Court held: "Impossibility or improbability of obtaining adequate relief by pursuing administrative remedies is often a reason for dispensing with the exhaustion requirement." In this case, the primary issue before the court is when the adoption assistance benefits should begin. The Department and A.L.J. have relied on the Department's adoption manual, specifically section 109.29, which limits retroactive benefits to the date of application. It is unreasonable to assume or believe the Department itself, in reviewing the A.L.J.'s decision, would refuse to apply its own in-house policy. Requiring Petitioners to jump through another hoop of administrative review would bring them no adequate remedy and they are therefore not required to do so. (2) See Wilson v. Ledbetter, 260 Ga. 180 (1990). Respondent's motion. is therefore denied.

MOTION FOR "JUDICIAL REVIEW

Turning now to the critical issue, the Court first notes it is bound by the record in reaching its decision. O.C.G.A. § 50-13-19(g). This Court will only disturb the decision of the A.L.J. upon a finding that substantial rights of the appellant have been prejudiced because the administrative findings or decision is in violation of constitutional or statutory provisions, in excess of the statutory authority of the agency, trade upon unlawful procedure, affected by other error of law, clearly erroneous or arbitrary or capricious or characterized by an abuse of discretion. O.C.G.A. § 50 -13-19(h).

Under this code section, the Court must first determine whether any substantial right of the Petitioners is involved. In this case, the Petitioners have been denied adoption assistance funds retroactive to the date of adoption, funds they would arguably have been entitled to had they not initially waived them. Sanders v. Dept. of Human Resources, Docket No.: OSAHFCS-SS 00-16934-121-MPM, at 4 (Jan. 18, 2001). This clearly constitutes a substantial right.

Having found a substantial right is involved, the next question is whether the A.L.J. erred in his decision to deny the Petitioners retroactive benefits. This Court notes that the agency is owed great deference in interpreting the statutory scheme under which it is operating. See. e. . Board. of Nasal Resources v Georgia Emissions Testing Co.. 249 Ga. App. 817 (2001). Therefore, the A.L.J. was correct to first look to the agency's policies regarding adoption assistance benefits. Sanders at 4-5. The A.L.J. noted specifically that the Department has adopted a limitation on post-finalization adoption assistance and has incorporated that limit into the Office of Adoptions Manual at § 109.29:

(3) If the fair hearing determines that all relevant facts were not presented at the tinge of the request for assistance then the earlier decision to deny benefits under Title IV-E may be reversed. Benefits will be retroactive to the date of the application. Id. at 6 (emphasis in the original).

The A.L.J. held that even though the U.S. Department of Health and Human Services (HHS) has authorized adoption assistance as far back as the date of the adoptive placement agreement, this authorization is not a mandate to the states- Instead, HHS's policy merely gives states the option to provide liberal retroactive benefits. Id. Georgia, the A.L.J. explained, has not opted to provide assistance retroactive to the date of adoption in the absence of an application. 'therefore, the Petitioners were found to be entitled only to assistance dating back to their application of February 2000. Id.

While the A.L.J. was correct in looking first to the Department's internal policies, his application of such policies, especially section 109.29, to his findings of fact, was clearly erroneous and in violation of statutory authority. Georgia has codified the Adoption Assistance Program at O.C.G.A- § 49-5-8(a)(6)(F). This section provides for the Adoption Assistance Program and grants the Department the authority to "establish, maintain, extend, and improve throughout the state . . . program that will provide . . ." for this type of assistance. O.C.G.A. § 49-5-8(a)(6)(F). Georgia's statute is based on and largely due to the Federal ,Adoption Assistance Program, which provides federal funds for the program provided the state complies with the federal guidelines supplied in the regulations. 42 U.S.C. § 673; 45 C.F.R. §1356.40 (2001).

Of particular importance in interpreting the mandate to the states is 45 C.F.R §1356.40(f) which places an affirmative duty on the states to promote the adoption assistance program. It is this regulation that led HHS to issue its policy announcement which provides that adoptive parents who feel they were wrongly denied benefits on behalf of an adoptive child have the right to a fair hearing, and if the child meets all the eligibility criteria assistance is available beginning with the earliest date of the child's eligibility. HHS Policy Announcement ACYF-CB-PA-01-01(2001). This announcement was released to eliminate the confusion caused by previous policy interpretations on the subject, and represents merely a clarification, not a new mandate. See id. This language indicates that the federal program requires states to provide a fair hearing where benefits have been wrongly denied, and both gives them the authority and requires them to rectify the wrong once eligibility has been shown. See id.

In this case the A.L.J. made two significant findings of fact: (1) the Sanders were not given ;Many of the medical records from the minor child's early months, and (2) the Department failed to fully inform the Sanders about the possibility of adoption assistance benefits before they (the Sanders) waived them. See Sanders at 3-4. These circumstances made it impossible for the Sanders to apply for benefits at the earliest possible date of the child's eligibility.(3) The Department's manual, which always precludes retroactive benefits beyond date of application, does not allow a fair hearing for petitioners as required by the above federal regulations, nor does it provide an adequate remedy under the factual circumstances of this case. More importantly, such a policy allows the Department to shield itself from payment of statutorily mandated benefits by simply failing to fully inform prospective adoptive parents. This is inherently wrong and clearly in contravention of the statutory scheme and intent of both the federal and state statutes set out herein. Therefore, the A.L.J.'s failure to determine and consider the child's eligibility prior to the Sanders' application was clearly erroneous.

The A.L.J. made no factual determination as to whether the child was eligible for adoption benefits prior to the date of application. 'this case is therefore remanded to the A_L.J. for such determination.

SO ORDERED, this 11th day of September, 2001

Robert L. Allgood
Judge, Superior Court
Augusta Judicial Circuit

NOTES

1 The factual history is taken from the record and the A.1..J.'s findings of fact entered January 18, 2001, which this court is bound to follow. See O.C.G.A. § 50.-13-19.

2 It is noted that the Department's own notice to the Petitioner of the A.L.J.'s initial decision states "Unless you file a timely motion for reconsideration a timely request for review with the DHR, you may lose the right to have your case reviewed by the Superior Court." (Emphasis added). The Petitioners, based on this notice, elected to file a motion for reconsideration. The Department's own notice is misleading and for this reason alone, the motion to dismiss should be denied.

3 This would be at the tune of placement versus post-adoption.