Administrative Hearing Decisions

In Re: Docket No. 08­1999 A 2017

LYNN A SMITH - APPELLANT

INITIAL DECISION

Nan Thomas, Administrative Law Judge, conducted an administrative hearing on November 19, 1999, which was continued to January 5, 6, and 7, 2000, and further continued to February 22, 23, 25, and 28, 2000. The Appellant. Lynn Smith, appeared and represented herself and was assisted In her representation by Timothy O'Hanlon. Assistant Attorney General Kristin Prater Glenn represented the Department of Social and Health Service's Division of Children and Family Services (Department). The record was held open by order until March 30, 2000, for the submission of documents.

HISTORY OF THE CASE

This case concerns an adoptive mother's application for adoption assistance under the federal adoption program for her emotionally disturbed two­year­old daughter, Melissa.[1] Because of the Department's failure to give the mother all of the reasons for the denial of her application prior to the date of the hearing. the hearing was bifurcated into two parts to allow the mother the opportunity to prepare to meet all of the reasons advanced by the Department for the denial of her application.

The first part of the hearing addressed the issue whether "extenuating circumstances" existed, pursuant to federal law, to allow a post­adoption consideration of eligibility under the Federal Adoption Assistance Program. Only if extenuating circumstances exist under federal law to allow a post­adoption application is the inquiry made into whether the child meets the other criteria for eligibility.

At the conclusion of the first part of hearing (on extenuating circumstances), the Department gave the mother notice of all contested eligibility issues under the assumption that extenuating circumstances existed to allow consideration of the eligibility criteria. The second part of the hearing was reconvened over a month later to address Melissa's eligibility under the federal law.

The hearing for this case went for eight days; over a hundred exhibits were received into evidence and extensive briefing was received from the parties.[2]

ISSUES

1. Does the fact that an adopted child has a physical, mental, or emotional disability, which is a preexisting condition and which was unknown at the time of the adoption, constitute an "extenuating circumstance" within the meaning of federal adoption law, which would allow a post-adoption application for adoption assistance?

2. If so, is Melissa Smith eligible for adoption assistance under the federal program? Specifically, is she ineligible because: (1) there was no judicial determination to the effect that continuation in her birth home was contrary to Melissa's welfare; or (2) that the adoption agency which placed Melissa did not take legal custody of her prior to her adoption; or (3) that there was no reasonable, but unsuccessful effort to place Melissa in an appropriate adoptive home without providing adoption assistance.

3. If Melissa is eligible for adoption assistance under the federal law, is she eligible to receive adoption assistance retroactive to the date her adoption was finalized?

4. Did the Department fail in its duties under the federal law to actively promote the adoption assistance program, pursuant to 45 C.F.R. 1356.40 (f), by not informing state­licensed private adoption agencies of the state's interpretation of eligibility criteria for the Federal Adoption Assistance Program?

FINDINGS OF FACT

1. Early in Melissa's birth mother's pregnancy, she contacted "A Center for Adoption Services," located in Sequim, Washington, because she did not want to parent her unborn child.[3]

2. A Center for Adoption Services is licensed by the State of Washington as a child placing agency.

3. Melissa's birth mother was a young, single mother was already parenting a two-year old child when she became pregnant with Melissa. Melissa was born on July 14, 1997, in Picayune, Mississippi. At the time of her birth, her birth father refused to parent or support Melissa, but would not agree to terminate his parental rights. Consequently, Melissa's birth mother felt she was forced to keep her until the father's parental rights could be terminated by court order, even though this had never been her intention. Melissa's mother did not wish to bond with Melissa as she did not intend to parent her. Melissa's mother's situation was desperate after her birth. The weather in Mississippi was 120 degrees; she was living on welfare of less than $100 per month; and the birth father had refused to help in any way. Numerous caregivers were involved in Melissa's early care.

4. Melissa' birth mother was receiving public assistance for Melissa from October of 1997 through January of 1998. At the time, that Melissa's adoption proceedings were initiated in November of 1997, her birth mother was receiving Temporary Assistance for needy Families (TANF) for Melissa. The TANF program had replaced the Aid to Families with Dependent Children (AFDC) program in 1996.

5. While in her birth mother's care when she was two months old, Melissa was pushed, or fell off of a table onto her head on a hard floor. It is not known what the psychological sequlae of that event was. It was later discovered that Melissa's mother had contracted hepatitus B while pregnant with Melissa and the hospital had failed to properly treat Melissa when she was born. It was also learned much later that Melissa had suffered from a series of ear infections when she was a young infant and it is not known if she received any medical care for those infections or the pain caused by them.

6. When Melissa was four months old, her birth mother went to A Center for Adoption services and told the agency caseworker that she had a plane ticket to leave the state and did not intend to take Melissa with her and that the adoption agency would have to find Melissa a home.

7. While the agency had first considered another adoptive family, the agency and the birth mother ultimately decided that Lynn Smith was the most suitable parent for Melissa. This decision was based partly on the fact that Melissa is an African­American child and that Lynn Smith has an ethnically diverse group of friends, and on the fact that Ms. Smith has her degree and wide experience in early childhood development, Ms. Smith also has had previous experience as a foster care parent. Based on statements by the birth mother, the adoption agency caseworker and Lynn Smith were concerned that Melissa was going to be abandoned by her birth mother in Washington when she left the state.

8. On November 17,1997, the caseworker for A Center for Adoption Services placed Melissa in the home of Lynn Smith with the intention that Ms. Smith would adopt Melissa when the birth father's parental rights could be terminated. Melissa remained in Lynn Smith's home in a pre­adoption placement from November 17.1997, until Ms. Smith adopted Melissa on January 9, 1998.

9. On November 17, 1997, Melissa's birth mother signed a Petition for Relinquishment of Parental Rights in which she stated:

It is in the best interest of this child that my parental rights be terminated and for the child to be relinquished and surrendered by me to Lynn Aileen Smith in order that her adoption of the child be completed.

Exhibit 1.

The Clallam County Superior Court Order terminating the birth parent's parental rights states:

IT IS HEREBY ORDERED ADJUDGED AND DECREED that the petition for Relinquishment of Parental Rights and Consent to Adoption previously executed by [Melissa's birth mother] are approved in all respects. She is hereby permanently deprived of all her parental rights and interests in, to and from Melissa Marie . . . . .

Exhibit 56.

The adoptive mother's petition for termination so she could adopt Melissa was signed on November 18, 1997, and filed on November 20, 1997. Exhibit 55. At the time adoption proceedings were initiated, Melissa was receiving TANF.

10. The undersigned concludes that the state­licensed private adoption agency had the responsibility for the placement and care of Melissa prior to her adoption. This finding is based on the following facts, the documents in the record, and credible testimony of the witnesses. From the time the birth mother contacted A Center for Adoption Services until pat the time that Melissa was adopted by Lynn Smith, the agency caseworker spent hundreds of hours working on this placement and adoption. During the first four months of Melissa's life, the caseworker for the adoption agency was in continuous contact with the birth mother when the father initially refused to relinquish the baby for adoption and then disappeared. The agency has at one point identified another adoptive family for Melissa's placement, but that adoption did not conclude. The agency did extensive case history evaluation in anticipation of placing Melissa. The agency conducted the pre­adoption home studies and the post­adoption placement visits and was involved with the potential adoptive family, the birth mother, the adoptive mother, and the child throughout the placement, pre­adoption, and adoption process. Dru Martin Groves, the caseworker for A Center for Adoption Services, was involved from the time of the initial contacts with the birth mother and through the entire adoption process and was present in court at finalization of the adoption. The attorney who did the adoption was one used regularly by the adoption agency and was not selected by Ms. Smith. The attorney has originally been involved in Melissa's case when the agency was considering placement with a different adoptive family. The adoption agency continued to be involved post­placement and pre­finalization of the adoption. The agency provided the prospective adoptive mother with historical documents and medical information about Melissa. Because Melissa's mother had tested positive for hepatitis B during her pregnancy and Melissa has not ben properly treated at birth, the caseworker was involved with Melissa's medical status after she was placed with Lynn Smith. The adoption agency caseworker monitored Melissa's ongoing health issues and had the responsibility to ensure that Lynn Smith properly dealt with Melissa's potential medical problems. Even after the agency placed Melissa with Lynn Smith, the agency would have removed Melissa from her home if Ms. Smith had failed to appear to be a good placement for Melissa. The Assistant Director and intake caseworker on Melissa's case for the private state­licensed adoption agency credibly testified that the adoption agency was responsible for the placement, welfare and care of Melissa. Record of Proceeding (hereafter RP) 857. The adoption agency did not take legal custody of Melissa and the Assistant Director credibly testified that the State had never informed the agency that the State considered agency custody to be required for eligibility for federal adoption assistance for special needs children. Testimony of Dru Martin Groves, RP 858-859.

11. With the exception of some temporary problems, Melissa appeared to be a healthy infant at the time that she was adopted. However, by the age of nine months old, Melissa had started exhibiting self­destructive behavior such as continual violent head­banging and self­gagging. This behavior continued to escalate and she continually hit her head with her fist, pinched herself, pulled her own hair, and poked herself in the eyes. Melissa also, as she became physically able, became very violent toward others. She would kick, bite, and hit her mother and pull her mother's hair. She repeatedly attempted to injure the family dog, and when she learned to walk, would violently attack younger children and babies. As she grew more mobile, Melissa would intentionally and continually put herself in danger. Melissa was also unselective who she went to even when her mother was present. Melissa's pediatrician, Dr. Eugene Turner, first diagnosed her as suffering from Attachment Disorder. Dr. Muazzez Eren found that Melissa's behaviors of uncontrollable crying, lack of response to comforting, lack of apparent bonds to objects and people, poorly regulated affect, difficulty sleeping, and physical aggression were signs of early Attachment Disorder. Dr. Eren found that at the age of 18 months, Melissa had the communication skills of an 8­month­old and the socialization skills of a 7­month­old on the Vineland Adaptive Behavior Scale. Dr. Eren concluded that Melissa would continue to be a child with special needs and that she and her mother would need help and support from a professional for much of Melissa's preschool years and periodic monitoring after that time. Dr. Eren recommended that adoption support be made available to Melissa so that the adoptive placement was a successful one. Dr. Eren opined that if help were given to Melissa before her behaviors became more unmanageable, it would hopefully prevent both emotional and financial costs to Melissa and to society. At the age of almost two, Melissa was tested again by an early childhood education specialist, Janet Proebstal , and found to have the socialization skills of an 11 month old baby. The early childhood specialist concluded that her delay in socialization skills put her at significant risk for education failure and noted that her unprovoked attacks on other children and caregivers continued.

12. On January 21, 1999, after learning of the seriousness of Melissa's diagnosis, Lynn Smith applied to the Department for federal adoption assistance, including therapy and counseling for the child and parent, training for the family, therapeutic child care, and respite care. The application explained that help was needed for the single parent to be able to work at home.

13. In spite of repeated requests for a decision both from the adoptive mother and from the early childhood specialist working with Melissa, no decision was made on the application six months after application. On July 21, 1999, on the advise of the federal DHHS Northwest Child Welfare Adoption Specialist, Lynn Smith filed a complaint with Constituent Relations regarding the lack of any decision, for six months, on her application for adoption assistance for her two year old emotionally disturbed child.

14. On August 25, 199, the regional program manager for the Adoption Support Services of DSHS sent a denial letter to Lynn Smith stating as reasons for the denial:

a. Federal rule 45 CFR 1356.40(b)(1) which states that the adoption assistance agreement must "be signed and in effect at the time of or prior to the final decree of adoption."

b. Department of Health and Human Services, Administration for Children, Youth and Families' Policy Interpretation Questionnaires (PIQ's 88­06 and 92­02) which provide guidelines for a finding of extenuating circumstances. Based on the history of the case, I believe there is no basis for a finding of extenuating circumstances.

The letter then advised Ms. Smith of her right to a hearing on this denial.

Exhibit 7. No further reasons were given for the denial of the application.

15. Lynn Smith asked Shirley Gantzer (the regional program manager), Lois Chowen (the Program Manager), and Maralyn Akiyama (a program supervisor) for any further reasons for the denial of the application for adoption assistance for Melissa. No one gave any further reasons for denial. Lynn Smith requested a fair hearing on the denial.

16. On August 30, 1999, Lynn Smith wrote another letter to Constituent Relations, pointing out that federal hearing regulations require that reasons for denial be given. When Ms. Smith requested that she be told all the reasons for the denial pending her hearing, she was told "that's not how the legal game is played." Ms. Smith requested in writing:

That I receive, well before the fair hearing and preferably before the prehearing telephone conference scheduled September 16th, 1999, a detailed written explanation of why Adoption Support was denied on the basis of not finding extenuating circumstances.

Exhibit 16. No response was received from the Department.

17. On September 16, 1999, a prehearing conference with the then­assigned Assistant Attorney General, the prehearing ALJ and Lynn Smith was held. Ms. Smith again asked to be told of all reasons for the denial of adoption assistance for Melissa. No further reasons, beyond the reason that extenuating circumstances did not exist to allow a post­finalization application, were given by the Department at the prehearing conference. The AAG stated she intended to make a motion to dismiss the request for a hearing. No such motion was ever filed.

18. In a letter to Lynn Smith from a different assistant attorney general dated October 29, 1999, three weeks before the scheduled hearing, the Department's attorney stated "in this case, eligibility issues include: 1) whether the receipt of a TANF grant equates with AFDC eligibility; 2) whether the adoption court orders contain necessary "contrary to the welfare" language; and 3) whether a reasonable effort was made to place the child with appropriate adoptive parents without providing adoption assistance."

19. At the hearing of this case in November 1999, the Department raised a new eligibility issue that Melissa was not eligible for assistance because the adoption agency had not taken legal custody of her. Because the only reason for denial of the application that had been given by the Department in the denial letter and in the prehearing conference was that extenuating circumstances did not allow a post­adoption application (which does not concern any of the actual federal eligibility criteria), the undersigned bifurcated the hearing into two parts. The first part addressed only the reason given by the Department in the denial and prehearing conference, the existence of extenuating circumstances. Following the conclusion of the hearing, the undersigned requested that the Department give Lynn Smith any of the eligibility reasons upon which the denial was based. The Department then issued another denial letter listing the following three reasons for the denial of the application for assistance: (1) The relinquishment court order lacks the required "contrary to the welfare" language; (2) Department of Health and Human Services (DHHS) Policy sets forth the conditions under which a child placed for adoption through a private nonprofit child placing agency may be eligible for adoption assistance. The circumstances in this case do not meet the qualifying conditions; and (3) There is no showing that a reasonable. but unsuccessful, effort was made to place the child without providing adoption assistance. The hearing was continued to allow Ms. Smith to prepare to meet those reasons and reconvened to address all of the eligibility issues raised by the Department.

20. Based on specialist's testimony, the literature in the record, and testimony of other witnesses, the undersigned finds that there exists a critical need for effective therapy in a timely manner for Melissa. The record in this case contains almost 200 pages of journal articles and information about Attachment Disorder and its effects. DSM­IV describes attachment disorder in infancy as:

Markedly disturbed and developmentally inappropriate social relatedness in most contexts, beginning before age 5 years, as evidenced by either (1) or (2):

(1) persistent failure to initiate or respond in a developmentally appropriate fashion to most social interactions, as manifest by excessively inhibited, hypervigilant, or highly ambivalent and contradictory responses (e.g., the child responds to caregivers with a mixture of approach, avoidance, and resistance to comforting, or may exhibit frozen watchfulness)

(2) diffuse attachments manifested by indiscriminate sociability with marked inability to exhibit appropriate selective attachments (e.g., excessive familiarity with relative strangers or lack of selectivity in choice of attachment figure)

Pathogenic care as evidenced by at least one of the following:

(1) persistent disregard of the child's basis emotional needs for comfort, stimulation, and affection

(2) persistent disregard of the child's basic physical needs

(3) repeated changes of primary caregiver that prevent formation of stable attachment (e.g., frequent changes in foster care)

It is presumed that this disorder is caused by emotional and/or physical neglect and/or multiple changes of the primary caregiver.

American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, (DSM­IV) Fourth Edition, 1994

One of the symptoms of this disorder includes hurting self or others. Melissa has been diagnosed with the anxious subtype of Attachment Disorder. If untreated, that diagnosis often results in violent sociopathic behavior. A specialist on attachment disorder, Brian Post, testified at length on the nature and effect of this diagnosis. The evidence in the record supports the finding that untreated Attachment Disorder has devastating results on the child. the family, and on society and that treatment for the disorder should occur as early In the young child's life as is possible. Credible testimony indicates that the majority of families that do not receive effective therapy for their Attachment Disorder children end up sending them to residential treatment facilities. Credible testimony also indicates that if Melissa does not receive timely effective therapy. it is likely that she will end up in therapeutic foster care and residential placement due to the nature of her disability­

21. Credible testimony from Brian Post indicates that It is very difficult to find parents willing to adopt an Attachment Disorder child and that such children often move from home to home until they are hospitalized because parents are unable to keep them in their homes.

22. Ms. Smith has made significant changes in her life to meet Melissa's needs. As a child who suffers from Attachment Disorder. Melissa's needs require specialized care which generally cannot be met by outside care­givers. Because of the particular pathology of Melissa's disability, Lynn Smith has left her employment outside of the home and works only from her home. Ms. Smith has also hired people to do chores to allow her to be with Melissa almost all of the time and she is in the process of selling her home to pay her debts and to get effective assistance for Melissa.

23. During the hearing, a number of stipulations were entered into among the parties. All parties and representatives agreed that Melissa does suffer from Attachment Disorder. It was agreed that the Attachment Disorder was caused by early neglect by the birth mother and other caregivers prior to the child's placement with Lynn Smith. It was further agreed that the diagnosis of Attachment Disorder of the magnitude suffered by Melissa would make Melissa a "special needs" child within the meaning of the federal adoption assistance law with regard to the criteria that she suffer from a specific factor or condition such as a mental or emotional handicap from which it would be reasonable to conclude that such a child cannot be placed with adoptive parents without providing adoption assistance. (As discussed below, this stipulation refers to the federal criteria found in 42 U.S.C. § 673 (c)(2)(A).) Melissa's Attachment Disorder was a pre­existing condition which was both unknown and unknowable at the time of her adoption. [Stipulation of the parties.]

24. The parties also stipulated to the fact that Melissa met the "AFDC related" eligibility criteria. as that term is used in federal adoption law. because she was receiving TANF (the replacement program to AFDC) at the tune that Melissa's adoption proceedings were initiated. [4]

CONCLUSIONS OF LAW

History, Purpose, and Criteria for the Federal Adoption Assistance Program

1. The undersigned has jurisdiction over the persons and subject matter herein under chapter 34.12 RCW and pursuant to federal policy interpretations of the Adoption Assistance and Child Welfare Act codified at Title IV­E of the federal Social Security Act, 42 U.S.C. §673. ACYF­PIG­92­02; ACYF­PIQ­83­04. It is the responsibility of the administrative law judge to determine (1) whether extenuating circumstances exist and (2) whether the applicant was wrongly denied eligibility. Gruzinski v. Department of Public Welfare, 731 A.2d 246, 256 (PA 1999).

2. In order to address the issues whether extenuating circumstances exist to allow consideration of eligibility and to decide whether Melissa is eligible for federal adoption assistance, It is necessary to understand the law under which her mother applied for assistance.[5] In 1980, the Adoption Assistance and Child Welfare Act, Public Law (P­L.) 96­272, amended the Social Security Act and established a program of adoption assistance for "children with special needs." See 1980 U.S. Code Cong. and Adm. News, at 1448,1450. This legislation was intended to provide, for the first time, federal financial participation with states in a program of incentives and support for families to adopt certain children who could not be adopted without assistance because of a variety of specific factors or conditions. See PIQ 90­02. Federal Financial Participation (FFP) is available in the Title IV­E adoption assistance program for both ongoing adoption assistance payments and reimbursement for the nonrecurring expenses of adoption as well as medical assistance for the adopted child. The Act is now known as Title IV­E, the Federal Adoption Assistance Program, and is codified at 42 U.S.C. §673. [6]

3. The states are charged with the responsibility of administering this program as set out in Title IV­E. In Washington, the program is administered by the Department of Social and Health Services (DSHS or the Department). While federal law allows for diversity by the states in some aspects of the program, it mandates uniformity in others. For example. states may further define the meaning of "special needs" child. However, states may not add to eligibility requirements for inclusion in the federal program so as to narrow the group of children eligible for assistance under 42 U.S.C. §673. Nor may the states narrow the category of extenuating circumstances which allows post-finalization application. PIQ 92­02. All parties concurred that Washington State risks losing federal funding if the State enacts adoption assistance laws that are more restrictive than the federal law.

4. The purpose of the Federal Adoption Assistance Program is to encourage and support the adoption of children who have "special needs" and to promote the "best interests of the child." Gruzinski v. Dept. of Public Welfare, 731 A.2d 246, 253 (1999). The Program Manager for the adoption support program in Washington testified that adoption assistance is not just to initially get a special needs child adopted, but also to support that family in an ongoing way so that the adoption of the special needs child does not fail. Testimony of Lois Chowen, RP 746. Law and policy support this understanding of the intent of the law. See e.g., PIQ 90­02; RCW 74.13.115. Ms. Chowen's testimony is not only legally accurate, but fiscally and humanely sensible. Adoption of handicapped children to families who, because of lack of support. are unable to keep and care for such children does a disservice to those children and their families as well as to the government coffers. Foster care is, by legal definition, more expensive for society than adoption assistance, 42 U.S.C. §673(9)(3), and a failed adoption is a tragedy for everyone involved. The Title IV­E Adoption Assistance Program has a broad purpose and, unlike otter public assistance programs in the Social Security Act, it is intended to encourage an action which will be of lifelong social benefit to a certain category of children and not generally to meet short­term monetary needs during a temporary period of economic crisis. PIQ 90­02.

5. Federal regulation requires that the state agency "actively seek ways to promote the adoption assistance program." 45 C.F.R. §1356.40(1). Similarly, the State of Washington. through DSHS, is required to actively seek and make maximum use of federal funds as are, or may be made available. to the department for the purpose of supporting the adoption of hard to place children. RCW 74.13.106. The policy of Washington State is as follows:

[T]o encourage, within the limits of available funds, the adoption of certain hard to place children in order to make it possible for children living in, or likely to be placed in, foster homes or institutions to benefit from the stability and security of permanent homes in which such children can receive ,continuous parental care, guidance, protection, and love and to reduce the number of such children who must be placed or remain in foster homes or institutions until they become adults.

RCW 74.13.100; see also, In re: Welfare of Ott v. State of Washington. 37 Wn. App. 234, 239, 679 P.2d 372 (1984). Credible expert testimony indicates that, without assistance, a child with Attachment Disorder, such as Melissa, is likely to be placed in a foster home or an institution.

6. The criteria for eligibility under the federal program are contained in 42 U.S.C. §673. To be eligible for ongoing adoption assistance payments under federal Title IV­E, a child must be eligible for Aid to Families with Dependent Children, Title IVE Foster Care, or Supplemental Security Income for the Blind and Disabled. 42 U.S.C. §673(a); PIQ 90­02; PIQ 89..02. In addition to one of these three criteria, the child must meet the definition of a child with "special needs" according to section 673(c) of the Act. Under that section, the determination is made as to whether a child is a child with 'special needs", according to the following factors: (1) the child cannot or should not be returned to the home of the parents; (2) there exists a specific factor or condition (such as the child's age, ethnic background, emotional, physical or mental handicap. or membership in a minority or sibling group) because of which it is reasonable to conclude that the child cannot be placed for adoption without providing adoption assistance; and. (3) except where it would be against the best interests of the child, a reasonable, but unsuccessful, effort has been made to place the child without adoption assistance. 42 U.&C. §673(c); PIQ 90wa2: PIQ 89­02. Melissa was receiving public assistance at the time that her adoption proceedings were initiated. Findings of Fact 4 and 9. Therefore, Melissa is "AFDC­related" as that term is used in federal adoption parlance and the criteria of 42 U.S.C. §673(2)(2) is met. The Department stipulated that part 2 of the special needs criteria is met because of Melissa's emotional handicap. This satisfies the criteria of 42 U.S.C. §673(c)(2).

In order to reach the other eligibility requirements that the State argues are not met in Melissa's case, it is first necessary to decide whether or not a post­adoption application is allowed by considering whether "extenuating circumstances" exist to allow a post­finalization application.

Extenuating Circumstances

A finding of extenuating circumstances is not a determination of eligibility for the adoption support program, but constitutes a reason for permitting an eligible adoptive parent to participate in the adoption assistance program, even though an adoption support agreement was not entered into before finalization. It is the Department's position, which is congruent with federal policy, that the Department does not have authority to determine that extenuating circumstances exist; the applicant must first obtain an order from an Administrative Law Judge finding extenuating circumstances under federal law. RP 330.

7. The Federal Adoption Assistance Program requires that each state enter into adoption assistance agreements with the adoptive parents of children with special needs­ 42 U.S.C. §673(a)(1)(A). Federal regulations require that an adoption assistance agreement be signed and in effect at the time of or prior to the final decree of adoption. 45 C.F.R. §1356,40(b)(1). However, because this strict pre­adoption application requirement resulted in extremely inequitable situations for many families, exceptions to this rule were created, first by case law, and then by federal policy interpretation. See e.g. Ferdinand v Department for Children and Their Families, 768 F.Supp. 401 (D.R.1 1991). The U.S. Department of Health and Human Services, Administration for Children, Youth and Families, Policy Interpretation Questions (PIQs 88­06 and 92­02) provide guidelines for a finding of "extenuating circumstances" that have been finalized. [7]

8. In 1988. PIQ 88­06 explained that if adoptive parents were denied benefits and extenuating circumstances were present, then the adoptive parents could request a post­adoption fair hearing on adoption assistance. See PIQ 92­02, issued June 25. 1992, citing 88­06, issued December 2. 1988.

9. Without an "extenuating circumstances" exception to the rule that adoption support must be in place by the time that the adoption is finalized, special needs children (such as children with severe physical or mental handicaps) would be forever unable to receive adoption assistance even though they were, in all other respects, eligible to receive help from the federal program. An affirmative finding that extenuating circumstances exist to allow post adoption application allows a consideration of whether the disabled child was (before the time of the adoption) eligible under ail of the criteria of federal law for adoption assistance. The PIQs give guidance on when extenuating circumstances exist.

10. In question number one of PIQ 92­02, the question contains the following statement:

The case situation described in ACYF­PIO­88­06 spoke to a child's medical condition which was not properly diagnosed prior to adoption as being grounds for a fair hearing.

That question then went on do address another issue. In question number fire in PIG 92­02, the query was whether a state may establish policies defining the factual circumstances which constitute an extenuating circumstance for the purpose of a falr hearing. The federal policymakers replied that it was permissible for states to have written guidance regarding the types of situations which would constitute the grounds for a fair hearing in order to assist fair hearing officers. However, the policy statement added that state policies may not define the grounds for a fair hearing more narrowly than federal policy. PIQ 92­Q2 (emphasis added) then went on to state that:

The types of situations which would constitute grounds for a fair hearing include: (1) relevant facts regarding the child, the biological family or child's background are known and not presented to the adoptive parents prior to the legalization of the adoption; (2) denial of assistance based upon a means test of the adoptive family: (3) erroneous determination by the State that a child is ineligible for adoption assistance: and (4) failure by the State agency to advise adoptive parents of the availability of adoption assistance.

The result in these examples is that parents of special needs adopted children were denied the opportunity to apply for adoption assistance because they lacked some crucial piece of information at the time of adoption. The department reads PIC 92­02 in a very narrow manner and argues that the only possible extenuating circumstances are those examples mentioned in the federal policy statement in PIC 92­02 or some very similar situation in which the agency had committed some error or omission. The Department argues that only if an agency, whether private or public, is at fault ran there be an "extenuating circumstance­ that would allow a family to seek adoption assistance for their special needs child after the adoption is final. The undersigned disagrees with this narrow reading for three reasons. First, adoption assistance is not about an agency's fault; it is about assistance to, and support of, permanent homes for special needs children. Such a restricted reading of the concept of "extenuating circumstances" is at odds with the purpose of the program. Secondly, extenuating circumstances based only on agency fault ignores the rationale and dictates of federal policy enunciated in PIQ 88­06. Thirdly, other states have not so construed the meaning of extenuating circumstances. Each of these considerations are discussed below.

The purpose of the adoption assistance program is to encourage the adoption of special needs children and to support those adoptive families to integrate such children into their families so that the adoption continues and provides a permanent home for those kinds of children. See Gruzinski v Department of Public Welfare, 739 A.2d at 248; PIQ 90­02; Testimony of Lois Chowen. RP 746­47. The reason to create exceptions to the rule that application must precede adoption is to make sure that the program is available to the special needs children who would otherwise be eligible for the program, except for the fact that (through no fault of their own) the parents lacked some information which they needed to make application for their children. The intent of allowing post­adoption application for assistance is not to punish a state or private adoption agency or social worker, it is to rectify an unfair situation relating to a needy disabled child. In light of the purpose to support in an ongoing way the adoptions of disabled children, and In the absence of any law which limits extenuating circumstances to agency fault, the undersigned concludes that post finalizations applications are not limited only to situations where there has been agency fault.

Secondly, official federal policy, which is binding on the states since this is a federal program, does not make agency fault a necessary criteria for a post­adoption application for support. The case discussed in PIQ 88­06 did not involve the fault of anyone: at the time of that child's adoption, there was no diagnosis that she was a special needs child. Not until after the adoption were the doctors able to diagnose that child as having juvenile rheumatoid arthritis. The agency had correctly denied the application for adoption support because no one knew, and no one could have known, that the child was eligible. The case in PIQ 88­06 is in all relevant ways the same case as the one before us. The fact that in both cases the children had unknown disabilities is the critical fact. The fact that in one case, the family sought adoption assistance (based on the ground that the child was a member of a sibling group) before adoption and in this case no assistance was sought (because the parent had no idea that assistance was necessary) is not a critical distinction. The relevant fact is that in both cases, the parents lacked the information so that they could apply for assistance for their disabled children. Parents who do not apply because they do not know of the program, or who were told that they were Ineligible, are in precisely the same situation as those parents who do not apply for assistance because they do not know, at the time of the adoption, that their child is a special needs child. The federal policy statement in PIQ 88­06 makes clear that state or agency fault is not the issue in determining it there are extenuating circumstances that allow post­adoption application. In PIQ 92­02, it was unnecessary in question number five to again mention the example of when application is not made because a disability is unknown in its four new examples because PIQ 88­06 already had addressed that situation and PIQ 88­06 had been referenced in question number one of PIQ 92­02.

The Program Manager for the Adoption Support Program credibly testified that this program is not one where the State's goal Is to carefully guard the funds and expend them as little as possible, but rather to provide assistance to those children who are eligible and not to apply rules adversely to an eligible child's welfare. Testimony of Lois Chowen, RP 674­75. However, the Department argues that in this case it is prohibited by federal law from allowing Melissa to apply post finatization for adoption assistance even though she had a pre­existing disability which would have met that federal eligibility criteria. While the Department in this state reads the four illustrations cited in PIQ 92­02 to be an exclusive list of "extenuating circumstances" that could allow post­adoption application for support, other states have not so construed the federal policy. Other states have also not interpreted "extenuating circumstances' to require that a private or public agency was at fault. Those states have included in their definitions of "extenuating circumstances" the very factual situation which occurred in this case. [8] If the federal policy limited post adoption application to only situations involving the fault of an agency, or the examples listed in PIQ 92­02, all of these laws would run afoul of the federal law.

PIQ 92­02 explains that the states have the latitude under federal law to further define the definition of extenuating circumstances to meet the intent of the program. This State had not promulgated such rules. RP 322. In the absence of a properly promulgated regulation further defining the federal requirement of "extenuating circumstances". the undersigned resorts to consideration of the state's code regulation enunciating the purpose for adoption assistance. A narrow and excluding reading of extenuating circumstances is at odds with the published regulations of the adoption assistance program in this state. WAC 388­70­510(2) provides in relevant part (emphasis added):

The purpose of the [adoption support] program is to encourage the adoption of hard­to­place children, that is, the child who would have to live out his or her childhood without the security and stability of a permanent adoptive home if support payments were not made. The program includes children cared for by both ,public and voluntary child care agencies. Interpretation of the statute and the philosophy of the adoption support program emphasize a flexible approach to subsidized adoption, focusing on the welfare of the child; rules shall not be adversely applied to the child's welfare.

In this case, by construing the extenuating circumstances exception to mean only fault of the agency, the department has defeated its own published policy of construing the Federal Adoption Program to promote the welfare of the special needs children of Washington.

11. In light of these reasons, the undersigned concludes that the pre­adoption existence of a physical, mental, or emotional handicap which is unknown at the time of the finalization of adoption constitutes an "extenuating circumstance" within the meaning of federal law and an exception to the federal regulations at 45 C.F.R. §1356.40(b)(1) requiring that the adoption assistance agreement be signed and in effect at the time of or prior to final decree of adoption. Therefore. Eligibility must be determined.

Eligibility Issues

Agency Custody

12. The position of the Department's witnesses was that Melissa cannot be eligible for adoption assistance because she was not in the legal custody of a state or private agency prior to her adoption. The eligibility requirements for federal adoption assistance are contained in 42 USC 673. The law does not require custody by an agency.

13. PIO 85­04 explains that "neither the Act nor the implementing regulations prohibit an otherwise eligible child from being eligible for Title IV­E adoption assistance when responsibility for placement and care is with a private nonprofit agency." That PIQ states that "a child whose placement and care are the responsibility, of a Private nonprofit agency may be eligible for Title IV­E adoption assistance payments. The child must meet the eligibility requirements in Section 473(a)(i) and be determined by the State to be a child with special needs in accordance with section 473(c) of the Act." As noted elsewhere in this decision, all of those eligibility requirements are met PIG 85­04 further states that:

An otherwise (non-SSI) eligible child may be eligible for IV-E adoption assistance payments if at the time adoption proceedings were initiated, he [or she] met the definition of "dependent" child under section 406 (a) or 407 of the Act [AFDC­related] or would have met the requirements except for his removal from the home of a specified relative. The removal must have been (1) as the result of a judicial determination or (2) pursuant to a voluntary placement agreement with respect to which Federal foster care maintenance payments were made. There is no requirement that the child under the responsibility of the State agency or be receiving foster care maintenance payments under Title IV­E at the time the adoption proceedings are initiated.

Requirements in regard to removal under section 473(a)(1)(A)(i) of the Act can be met when a child is under the responsibility of a private non-profit agency in any of the following situations:

(1) The child is removed from his [or her] home as the result of a judicial determination and responsibility for placement and care is given to a private agency. [PIQ 86-04 (emphasis added)]

It is questionable whether this last paragraph even applies in Melissa's case since she was voluntarily relinquished by her birth mother and was AFDC­related so the language in the first paragraph before the underlined "or" applies in her case. However, even if "removal" must be shown, the facts of this use do demonstrate Melissa's eligibility under this example. In this case, Melissa was legally and permanently removed from her birth mother's home by a court order terminating the birth parents' parental rights. [Exhibits 1, 56] As found above, the facts of this case amply support finding that the private adoption agency did have responsibility for the placement and care of Melissa prior to her adoption by Lynn Smith.

14. PIQ 87­05 [9]also addresses this issue:

QUESTION: In some States, statutory requirements subsidy programs limit eligibility under Title IV­E to children who are committed or relinquished to the State agency. Are these provisions consistent with the requirements of Title IV­E, Section 473(a)(2), of the Social Security Act?

INTERPRETATION: No, State satutes which limit access to the Title IV­E Adoption Assistance Program by the addition of eligibility requirements beyond those required by under the Federal statute are not in conformance with Title IV­E. 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 IV­E AFDC program, the 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 responsisibility of the Title IV­E 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 IV­E 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 Title IV­E agency may not exclude them from consideration or approval, if they are otherwise found eligible for adoption assistance in accordance with section 473.

PIQ 87­05 list some examples of children who are AFDC­related under section 473(a)(2)(A)(i) which refers to 42 U.S.C. 673(a)(2)(A)(i), or SSI eligible or in foster care. While these are listed as permissive categories, the language is not exclusive. In this case, Melissa has been determined to be AFDC­eligible and adoption was the goal of the state­licensed private adoption agency.

15. Nothing in Washington law requires an adoption agency to take legal custody in order for a special needs child to be eligible for adoption assistance. As noted above, in the purpose section of the Washington regulation, the law states that "[t]he [adoption support] program includes children cared for by both public and voluntary child care agencies." WAC 388-70-510(2). Nowhere in federal or state law or regulation does the criteria of "custody" appear as a prerequisite to assistance.

16. The Pennsylvania court of appeals has recently addressed this issue. In Barczynski, v. Department of Public Welfare, 727 A.2d 1222, 1226 (PA 1999), the Department had denied a family's application for adoption assistance because the child was not in the legal custody of a county agency or another state­approved agency at the time of the adoption and because the Barczynskis' adoption of the child was considered to be a private adoption between the birth parents and the adoptive parents. The Barcaynskis argued that the Pennsylvania law, which limited adoption assistance payments to special needs children in the legal custody of a county agency or other state­approved agency, conflicted with the federal Adoption Assistance and Child Welfare Act of 1980. The Court agreed, holding:

Congress stated that its purpose in enacting the Federal Law was to enable each state "to provide .... adoption assistance for children with special needs." 42 U.&C. § 670. This statement of purpose does not limit adoption assistance to special needs children in the legal custody of a county agency or other stateapproved agency. Moreover, the provision of the Federal Law dealing specifically with the adoption assistance program states: "Each State having a plan approved under this part shall enter into adoption assistance agreements ... with the adoptlve parents of children with special needs" 42 U.S.C. §673(a)(1)(A). The state is not directed to enter into adoption assistance agreements only with adoptive parents of special needs children in the legal custody of a county agency or other state­approved agency. [Barczynski, 727 A.2d at 1225]

As noted, there is no Washington law which limits adoption assistance to children who are in the custody of a state or state­licensed agency and the addition of such a requirement would run afoul federal law­ The criteria of § 673 is the sole criteria for the federal program. [PIQ 87­05; Gruzinsld, 731 A.2d at 254]

17. The undersigned concludes, based upon the above cited law, that it is not a criteria for federal adoption assistance for a child to be in the custody of a state or statelicensed agency. In this case, the state­licensed agency had the responsibility for the placement and care of Melissa; she was AFDC­related; she was a disabled child: and adoption was the goal of the agency. She is not barred from eligibility by the fact that the agency did not take legal custody between the time that the agency placed her with Lynn Smith and the time that she was adopted.

Effort to Place Child without Adoption Assistance

18. The Department also argues that there is no showing that a reasonable, but unsuccessful, effort was made to place the child without providing adoption assistance. The requirement is that a child will not be considered a child with special needs unless:

except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child, a reasonable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under Subchapter XIX of this chapter. [42 U.S.C. 673(c)(2)(B)]

19. This is a confusing requirement to try to apply in a post­adoption application setting because the child has in fact been placed without adoption assistance. It is doubtful that this continues to be an eligibility criteria in the setting of post­finalization application. Obviously. the child who is already adopted by a family cannot be moved to a different family who is willing to adopt without adoption assistance. The Department's Program Manager conceded that in the situation where parents had no knowledge of the availability of adoption assistance because not informed by the agency, the question of whether there had been a reasonable but unsuccessful effort to place without adoption assistance would be irrelevant. [Testimony of Lois Chowen, RP 755­56]

The only way to apply this criteria in a post­finalization situation is to ask whether, if the child had been known to be a disabled child at the time of the adoption, this criteria would have been met or excused by the best interest exception. In order to make eligibility determinations in a post­adoption application case, the parents must be allowed to prove that the eligibility criteria would have been met at the time of the adoption. See Hogan v. Department of Social and Rehabilitation Services, 727 A.2d 1242 (VT1998). Otherwise, the finding of extenuating circumstances to allow a late application would be meaningless. [Hogan, at 1243]

20. PIQ 92­02 explains the "reasonable efforts" criteria as follows:

QUESTION: With respect to the State agencys responsibilities in the administration of the program, some concem has been expressed over the seeming paradox between notifying and advising prospective adoptive parents of the adoption assistance program and making a reasonable, but unsuccessful, effort to place a child without adoption assistance as required by section 473(c)(2)(B) of the Social Security Act Please clarify the issue.

RESPONSE: In an effort to find an adoptive home for a child, the agency should first took at a number of families in order to locate the most suitable family for the child. Once the agency has determined that placement with a certain family would be the most suitable for the child, then full disclosure should be made of the child's background, as well as known and potential problems. If the child meets the State's definition of special needs with regard to specific factors or conditions, then the agency can pose the question of whether the prospective adoptive parents are willing to adopt without a subsidy. If they say that they cannot adopt the child without a subsidy. the agency would meet tho requirement in 473(c)(2)(B) that there be a reasonable. but unsuccessful, effort to place the child without providing adoption assistance.

It was the intent of Congress, with the establishment of the adoption assistance program, to increase significantly the number of children placed in permanent homes. Thus, it is reasonable to conclude that it was not the intent of Congress that a child remain unnecessarily in foster care while the agency "shops" for a family which might be less suitable but is willing to adopt the child without a subsidy, if it has already found a suitable placement for the child.

See also, Testimony of Lois Chowen, RP 744­45. This criteria is met in Melissa's case for two reasons. First, the exception provides that the "reasonable efforts" requirement does not apply if it would be "against the best interests" of the child "because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of the parents as a foster child." The "such as" language of the law shows that other situations may come within the exception and that the foster care scenario is merely one example. Adoption ARC, Inc., v. Department of Public Welfare, 727 A.2d 1209, 1214 (PA 1999). The Program Manager credibly testified that it would not be in the best interest of a disabled child to be adopted without adoption assistance. Testimony of Lois Chowen, RP 745. It would have been against the best interest of Melissa, as a child suffering from Attachment Disorder, to either change caregivers or to be wifh multiple caregivers, or have her parent adopt her without an adoption assistance agreement. Therefore, had the agency known of Melissa's diagnosis at the time her birth mother left her In Washington, it would have been against Melissa's interest to move from Lynn Smith's home. Therefore, the search for another family would not have been required under federal law.

Additionally, even if the "best interest" exception did not apply, the criteria would have been met in this case. As found above, the agency and birth mother, after considering other families, had determined that Lynn Smith was the most suitable parent for Melissa. Once that determination had been made, then the agency would have asked Lynn Smith if she was willing to adopt without a subsidy. She has credibly testified that she would not have adopted Melissa, knowing of her severe special needs, without adoption assistance for her. The undersigned finds, this credible because knowing of the services which Melissa requires. it would clearly have been against her best interest to not have financial resources to access those services. Additionally. credible testimony of the Attachment Disorder specialist confirms that it is very difficult to find parents willing to adopt an Attachment Disorder child and that such children often move from home to home until they are hospitalized because parents are unable to keep them in their homes. Hence, under federal policy. the requirement of a reasonable, but unsuccessful, effort to place without adoption assistance would have been met. See also PIQ 88­06 (where a child with an unknown disability was not ineligible because of a lack of search for an unassisted home).

Removal of a Child Pursuant to a Judicial Determination to the Effect that Continuation In the Home Would be Contrary to the Welfare of the Child

21. The Department also argues that Melissa is not eligible for federal assistance because the Superior Court order lacked the required "contrary to the welfare" language contained in 42 U.S.C. §673(a)(2)(A)(i). That section of the law provides in relevant part (emphasis added):

For purposes of paragraph (1)(B)(ii) , [which for adoption assistance payments to parents], a child meets the requirements of this paragraph if such child-

(A) (i) at the time adoption proceedings were initiated, met the requirements of section 606(a) of this title or section 607 of this title (as such actions were in effect on July 16, 1996) [AFDC eligibility] [10] or would have met such requirements except for his removal from the home of a relative (specified in section 606(a) of this title (as so in effect)), either pursuant to a voluntary placement agreement with respect to which Federal payments are provided under section 674(or 603 (as such section was in effect on July 16, 1996)) of this title or as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child.

Since Melissa was receiving TANF at the time adoption proceedings were initiated (and would also have been eligible to receive AFDC as that program existed) she falls within the first underlined part of §673(a)(2)(A)(i) before the word "or". Therefore, the language in this section about "contrary to the welfare" (which applies to the removal of the child) does not apply to her; it applies to those who "would have met such requirements" If certain events had occurred. The reason for the requirement of a judicial determination that it would be contrary to the welfare of the child to remain at home is so that children are not taken away from their birth parents without good reason. Testimony of Nestor Bordon, RP 813­16. The requirement is a part of 42 U.S. C. § 872 which relates to the placement of foster children. The "contrary to the welfare" language does not apply in adoption assistance cases where foster care is not involved. Foster care is only one of the three ways to be eligible under 42 U.S.C. §673(a)(2); PIQ 85­04; PIQ 90­02. Melissa qualified by being AFDC­related, not by being in foster care. Her mother voluntarily relinquished her, she was not involuntarily placed in foster care. The testimony of Nestor Bordon, the Title IV­E program manager for the Department. confirms that the "contrary to the welfare" language requirement only applies to foster children. Testimony of Nestor Bordon, RP 821­22.

However, even if the "contrary to the welfare" language had been required, it is part of the Superior Court order in this case. As found above, the birth mothers petition to the Superior Court stated that it was in the best interest of Melissa that her parental rights be terminated and that she be relinquished to Lynn Smith and the Superior Court specifically approved that petition "in all respects". Exhibits 1. 56. PIQ 86­42 explains that even in foster care. where the requirement does apply, that the phrase "placement is In the best interest of the child" has the same meaning as "continuation therein would be contrary to the welfare of the child." See also Testimony of Nestor Bordon, RP 801804. The Superior Court judge reviewed the Petition and approved it, thereby finding that relinquishment and placement were in Melissa's best interest. Therefore, there was a judicial determination to the effect that continuation in the birth home would be contrary to the welfare of this child.

22. The finding that is necessary for adoption support is only that "the State has determined that the child cannot or should not be returned to the home of his [or her] parents." 42 U.S.C. § 673(c)(1). This means that the State must have reached that decision based on evidence by an order from a court of competent jurisdiction terminating parental rights (TPR), the existence of a petition for TPR, or a signed relinquishment by the parents. PIQ 89­02. The order from the Superior Court made such a determination when the birth parents' rights were terminated. Certainly this determination was made on correct facts since the birth father had already abandoned Melissa and her birth mother was threatening to do so and she had filed her petition that it was in Melissa's best interest that her parental rights be terminated.

23. In light of the above conclusions, Melissa meets all of the eligibility criteria of the Federal Adoption Assistance Program and is eligible for assistance under 42 U.S.C. §673.

Retroactivity of Receipt of Adoption Assistance

Once it has been determined that extenuating circumstances allow a postadoption application and that the child is otherwise eligible for adoption assistance. both of which have been deeded in this case, then the question becomes for what period of time may the child be eligible to receive adoption assistance

24. In PIQ 92­02, the question was posed to the Children's Bureau:

After the legalization of an adoption, if a fair hearing determines that a child has been wrongly denied benefits under the Title IV­E adoption assistance program, what is the earliest date from which assistance may be provided?

The Children's Bureau explained that generally the earliest date from which adoption assistance may be provided is from the time of the adoption decree for those children adopted on or before October 1, 1986, and from the date the child is placed in the adoptive home for later adoptions. [11] The PIQ then went on to explain the earliest date of assistance when the parent is allowed to seek assistance post­finalization. PIQ 92­02 provides in relevant part as follows (emphasis added):

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.

While not mandating adoption assistance back to the date of adoption or placement, the federal law clearly makes federal funds available to states when support is deemed appropriate for a particular child. There is no existing Washington law, statute, or regulation which gives any direct guidance on this issue. However, the Department is mandated by state statute to make maximum use of federal child welfare dollars. State law on adoption assistance provides:

... The secretary [of DSHS] shall actively seek, where consistent with the policies and programs of the department, and shall make maximum use of such federal funds as are or may be made available to the department for the purpose of supporting the adoption of hard to place children. ... [RCW 74.13.106 (Emphasis added)]

Additionally, WAC 388­70­510 provides in relevant part that:

Interpretation of the (adoption support) statute and the philosophy of the adoption support program shall emphasize a flexible approach to subsidized adoption, focusing on the welfare of the child; rules shall not be adversely applied to the child's welfare.

While the undersigned does not mandate any set amount of adoption assistance for Melissa's benefit for the period of time from her adoption to the time her mother applied for assistance, neither federal nor state law prohibits such assistance for those dates in addition to support for the period after the mother filed the application for assistance. Conversely, to completely rule out and automatically deny any benefits after the date of an otherwise eligible child's adoption because of late application which was not the fault of the parent would contravene the explicit directives set forth in state law which mandate maximum use of federal funds for the adoption of special needs children and which mandate a flexible approach to subsidized adoption. The entire focus of the hearing mandated by PIQ 92­02 is to determine if there are extenuating circumstances which allow the inquiry into whether the child was eligible for assistance at the time of her adoption. In mandating the inquiry into retroactive eligibility, the federal policy linked retroactive eligibility to potential retroactive assistance.

Melissa is a special needs child and was eligible for assistance at the time she was adopted. Extenuating circumstances prevented Melissa from receiving adoption assistance from the earliest date of her eligibility.

Adoption Support Amount

25. Having determined that federal law specifically allows retroactive adoption assistance back to the date of Melissa's adoption. and that nothing in Washington law prohibits such assistance. the issue then becomes the amount of such assistance due to this child. RCW 74.13.112 addresses the issue of the amount of adoption support and provides in relevant part:

The factors to be considered by the secretary in setting the amount of any payment or payments to be made pursuant to RCW 26.33.320 and 74.13.100 through 74.13.145 and in adjusting standards hereunder shall include: The size of the family including the adoptive child, the usual living expenses of the family, the special needs of any family member including education needs. the family income, the family resources and plan for savings, the medical and hospitalization needs of the family, the family's means of purchasing or otherwise receiving such care, and any other expenses likely to be needed by the child to be adopted. In setting the amount of any Initial payment made pursuant to RCW 26.33.320 and 74.13.100 through 74.13.145, the secretary is authorized to establish maximum payment amounts that are reasonable and allow permanency planning goals related to adoption of children under RCW 13.34.145 to be achieved at the earliest possible date.

The amounts paid for the support of a child pursuant to RCW 26.33.320 and 74.13.100 through 74.13.145 may vary from family to family and from year to year. Due to changes in economic circumstances or the needs of the child such payments may be discontinued and later resumed. [See also, WAC 38&70­560]

The Federal Adoption Assistance and Child Welfare Act provides that:

The amount of the payments to be made in any case under . . . [an adoption assistance agreement between a State and adoptive parents] shall be determined through agreement between the adoptive parents and the State or local agency administering the program under this section. which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted. and may be readjusted periodically, with the concurrence of the adopting parents (which may be specifed in the adoption assistance agreement), depending upon changes In such circumstances. However. in no case may the amount of the adoption assistance payment made under . . . [the agreement] exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home. [42 U.S.C. § 673(a)(3)(Emphasis added)]

This language has been interpreted to pertain to the parents' ability to incorporate the child into their household in relation to the family lifestyle, standard of living, and future plans and to their overall capacity to meet the immediate and future needs of the child. PIQ 90­02. The amount of adoption assistance payment is not based on a standard schedule of itemized needs and countable income. Instead, it is determined through a discussion and negotiation process between the adoptive parents and a representative of the state agency. The federal law clearly requires that the needs of the child and the circumstances of the adopting parent be considered together during that negotiation and that the negotiation should focus on the needs of the child. PIQ 90­02. The payment which is agreed upon will, therefore, be expected to combine with the parent's resources to cover the ordinary and special needs of the child projected over an extended period of time. PIQ 86­05. Counseling costs for the family and the child (in addition to Medicaid coverage) are available under Washington adoption support law. [Testimony of Lois Chowen, RP 747­45] One of the Program Managers confirmed that if Melissa is eligible under the Federal Adoption Assistance Program, then she is eligible for monthly maintenance, counseling services, and the federally funded Medicaid program. [Testimony of Shirley Gantzer, RP 1012] As is demonstrated in the recitation of facts. it is crucial that Melissa receive appropriate and effective psychological help as soon as possible. If agreement cannot be reached between the agency and the adoptive parent, the parent has the right to request a fair hearing. [PIQ 90­02]

As the above law demonstrates, it would run afoul of the federal and state law for the undersigned to set the amount of adoption assistance that should be afforded to Melissa at this point in time. Therefore, the case is remanded to the Department for negotiation of the amount of assistance for Melissa.

Due Process

In addition to the substantive legal issues raised in this case, the Appellant also raised the issue that she had not received a timely decision on her application for adoption assistance since it took the Department seven months to issue its first denial letter. She also raised the issue that she had not received ail of the reasons for the denial until several days into the hearing despite repeated attempts to have the Department give her all of the reasons for the denial.

26. Under 45 C.F.R. §205.10. which the parties correctly agree applies in this case, the Department must provide written notice of the intended agency action and must explain the reasons and the supporting authority for the agency action. [12] The undersigned finds that the Department failed in its duty to timely give Ms. Smith all of the reasons for the denial. If the position of the agency had been that the hearing needed to be in two parts or be two hearings. addressing the extenuating circumstances issue and then the eligibility issues, then the Department should have so informed Ms. Smith. This has not, however, been the consistent position of the Department. While the only reason given in the denial letter and at the pre­hearing conference was the lack of extenuating circumstances to allow post finalization application, the attorney representing the Department then gave three eligibility reasons in a letter between the time of the prehearing conference and the hearing and raised a new eligibility issue can the first day of the hearing. This does not comport with the hearing rights mandated under federal law. While the unfairness of the lack of timely notice of reasons for denial was somewhat mitigated by the bifurcation of the hearing and allowing the Appellant time to prepare to address those reasons. it has unfortunately delayed the resolution of this case which is detrimental to Melissa. However. the Appellant has prevailed on the merits of the case and no further remedy is available in this forum. With regard to the delay by the Department in making a decision on the application, this is somewhat rectified by the fact that federal law allows for retroactive adoption support back to the date of the child's adoption and that this has been ordered in this case.

State's Duty to Promote Adoption Assistance Program

27. The Appellant also raised the issue whether the State has failed to meet its duties under the federal law to actively promote the adoption assistance program because it has not informed state­licensed adoption agencies about the State's construction of the federal program­ in particular, she argues that if private agencies have no way of knowing that the State will not approve adoption assistance for handicapped children unless the agency takes legal custody of the children, then children will needlessly be barred from assistance. 45 C.F.R. § 1356.40(f) provides that:

The State agency must actively seek ways to promote the adoption assistance program.

The undersigned declines to reach this issue. First, It is extremely doubtful whether there is any jurisdiction in the administrative setting to determine what the parameters of the State's duty is under federal law. Jurisdiction in post­adoption cases is based on the directive of federal policy and is limited to whether extenuating circumstances exist to allow post­finalization consideration of eligibility and, if so, whether the particular child is eligible under federal criteria. See PIQ 92­02; Gruzinski, 731 A.2d at 256 (PA 1999). While it might be possible to conclude that extenuating circumstances exist when a state fails to inform state­licensed agencies of the requirements for adoption assistance, it has already been concluded that extenuating circumstances exist in this case because of the child's unknown pre­existing disability. Therefore, it is unnecessary to reach this much broader policy­laden issue. Furthermore, a federal directive from the federal Children's Bureau indicates that this issue should not be before the undersigned. The following question was posed to the federal Department of Health & Human Services last year:

Inquiry Number 4: What are the line­by­line specific requirements for the States to 'actively promote and publicize' adoption assistance programs? Is it possible to require States to offer very specific types of information as a way of promoting adoption assistance? Could a PIQ be written for States with a sample brochure attached that includes a list of parents' rights?

The Associate Commissioner of the federal Children's Bureau replied that:

Response: The Federal government has no statutory authority to specify how a State must promote the adoption assistance program. Federal regulations at 45 C.F.R. 1356.40 require that the State agency actively seek ways to promote the adoption assistance program. As partners in the implementation of Federal statute, we prefer that each State have the flexibility to decide which is the best manner for it to promote the adoption assistance program . ...

Exhibit 61.

The undersigned declines to decide this issue based on these statements of the federal government and on the basis that it is unnecessary to the resolution of this case.

DECISION

Extenuating circumstances exist to allow Lynn Smith to submit a post­adoption application for adoption assistance for Melissa under Title IV­E of the federal Social Security Act­ Melissa Smith is eligible for adoption assistance from the date of her adoption. Melissa's adoptive mother and the Department should negotiate the amount of adoption assistance pursuant to federal and state law described above.

Nan Thomas
Administrative Law Judge
Office of Administrative Hearings

A copy was sent to:

Lynn A Smith, Appellant; Martha Ashman, Other; Lois Chowen, DCFS Program Admin; Shirley Gantzer, Other; Kristin Prater Glenn, Department Rep; Timothy O'Hanlon, Other.

NOTICE TO PARTIES: THIS ORDER BECOMES FINAL ON THE DATE OF MAILING UNLESS WITHIN 21 DAYS OF MAILING OF THIS DECISION A PETITION FOR REVIEW IS RECEIVED BY THE DSHS BOARD OF APPEALS, PO BOX 45803, OLYMPIA, WA 98504­5803. A PETITION FORM AND INSTRUCTIONS ARE ENCLOSED.

Footnotes

1 In the record, the parties use the terms "adoption assistance" and "adoption support" interchangeably. Both terms are used in federal and state law. 42 U.S.C. §673 (Title 42, Chapter 7, Subchapter IV, Part E ­Adoption Assistance Program), 45 C.F.R. §1356.40 (Requirements Applicable to Title IV­E); RCW 74.13.100 through 74.13.145.

2 Kristin Prater Glenn, the Assistant Attorney General on this case, and the Appellants representative, Dr. Timothy O'Hanlon, should be commended on their legal acumen and courtesy in this complex case.

3 To protect her privacy, Melissa's birth mother's name will not be used in this decision.

4 At the hearing on this matter, Shirley Gantzer, a Program Manager for the adoption program testified that:

one of the federal requirements is that there be, at the time the adoption proceeding was initiated, the child was eligible for AFDC. and there is agreement in this case that at the time the adoption was initiated, the child met the requirements for AFDC eligibility, as required in 42 U.S.C. §673. [RP 64]

The assistant attorney general representing the Department confirmed that:

...the Department considered the entire AFDC requirement with respect to adoption assistance, and the child was in fact living in the mother's care at the fire that the adoption petition was filed­ So, in this case, the faces met the requirement for AFDC eligibility for IV­E adoption support funds. [RP 237]

There appears to have been some confusion late in the hearing (during Nestor Bordon's testimony) on whether Melissa's "AFDC relatedness" was based on 42 U.S.C. § 673(a)(2)(A)(i) or on § 673(a)(2)(B). Compare RP 237 with 829. The testimony and documentation shows that Melissa s adoption was Initiated in late November of 1997 while she was on public assistance through her birth mother. Therefore, "AFDC­relatedness" (an eligibility criteria of the Federal Adoption Assistance Program) is established by compliance with § 673 (a)(2)(A)(i).

5 During a prehearing conference in this case, there was some confusion on the part ofthe assistant attomey general then assigned to this case about whether Ms. Smith was applying for assistance under the state or federal programs. It was clarified at the hearing on this matter that the application had always been for adoption assistance available under 42 U.S.C. §673 and any applicable state adoption support.

6 Reference in the record is often to Section 473 of the Social Security Act which is codified at 42 U.S.C. §673.

7 A PIQ (Policy Interpretation Question) is an authoritative interpretation of federal law issued by the U.S. Department of Health and Human Services' Administration on Children, Youth and Families (Children's Bureau). See response by Carol W. Williams, Associate Commissioner of the U.S. Department of Health and Human Services. Children's Bureau. to questions concerning the status of PIQs, April 5. 1996. Exhibit 65. The Children's Bureau is the division of the U.S. Department of Health and Human Services responsible for publishing federal interpretations pertaining to the right IV­E Adoption Assistance Program. Id. AN parties in this case properly agree that federal responses in PIQs interpreting the adoption assistance program apply in this case­ See, Gruzinski. 731 A. 2d at 253 (recognizing that the purpose of ail federal policy interpretations was to interpret existing federal law, the Pennsylvania Court required that its Children and Youth Services' agencies utilize all available federal policy interpretations if doing so would enable adopted children to benefit from this federally funded program).

8 Arizona allows post-finalization application when a child had an undiagnosed condition which existed before the finalization of the adoption. Arizona Rev. Slat. §&144.. Maryland allows a post-adoption subsidy when there is a verified condition which existed before the adoption and which would have made the child eligible for subsidy but which was not known at the time of adoption. Maryland statutes Md. Regs. Code tit.7. §2, chap. 12­15. New York allows adoption agreements to be submitted after flnalization of the child's adoption in cases where the adoptive parent can establish that he or she was unaware of any handicapping condition affecting the child at the time the child's adoption was finalized. NY (Soc. Serv.) Law tit 18, § 421.24(b)(2)(i)(a). Oklahoma allows post­legal adoption subsidy assistance when the child is determined to have a causative pre­existing condition which was not identified or known prior to the legal adoption and which resulted in a severe medical or psychiatric condition that requires extensive treatment. Okla. Stat. Tit. 1 0, §7510­1.5(B).

9 During the hearing, the Department learned that PIQ 87-05 was going to be withdrawn but it was not known what part of the policies enunciated in that policy statement were being changed. There was testimony that new federal rules were expected to become final on March 25, 2000. Those rules became effective after the conclusion of this hearing and do not apply to this case.

10 See testimony of Nestor Bordon at RP 823­24; RP 205.

11 Because Melissa was adopted after 1986, her mother could have requested adoption assistance from the time of her placement. She instead requested assistance from the later date of her adoption which was January 9, 1997.

12 Federal regulations require that States have a fair hearing process in place with regard to the adoption assistance program. 45 CFR 1355.30(k) provides that procedures and requirements for hearings under 45 CFR 205.10 apply to all programs funded under Title IV­E of the Social Security Act. The Federal Adoption Assistance at issue in this case is a Title IV-E program. [42 U.S.C.§673: PIQ 83-04]