Administrative Hearing Decisions

Department of Health and Welfare, State of Idaho;

Appeal No. 97-172-6-11; August 27, 1997

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL DECISION AND ORDER

This matter came before RONALD D. BRUCE, designated Hearing Officer for the Idaho Department of Health and Welfare, on August 26, 1997, at 1:00 p.m.

The hearing was conducted by telephone conference with the Hearing officer in his Boise office and the parties appearing in the American Falls Field Office. Dianna K. Strand did not appear personally but was represented by Ben and Kathie D. Strand. The Department was represented by Deputy Attorney General Brent Asay, with Adoption Program Specialist Meri Brennan.

The Hearing officer has reviewed the record of the case, examined the proof offered by the respective parties at the hearing, considered the arguments made by the parties at the hearing, and makes the following Findings of Fact and Conclusions of Law.

I. ISSUE

Whether Dianna is eligible for post legal adoption assistance?

II. FINDINGS OF FACT

1. Dianna Katherine Strand, 18, born November 8, 1978, and her brother Joshua D. Strand, 17, born April 4, 1980, were in foster care for about 18 months, when at the ages of 2 and 3 they were placed with Ben and Kathie D. Strand.

2. The Strands have two older children, and felt they could provide a home for another child, but were anxious to adopt rather than have another of their own, because they felt it would both do a service and respect the need to not overpopulate. They had been on the adoption list for approximately 18 months when they were invited to consider Joshua and Dianna. The problem was that they had to be adopted together, for the birth father to voluntarily terminate his parent-child connection.

3. The Strands, had two requirements for adoption: the child had to visually similar to their family, and that the child should be normal and healthy. The Strands hoped to involve their adopted child in community activities such as little league and scouting which seemed to give their own children quality experiences.

4. Concerning their requirements and expectations they say they were told only that these children need a loving, secure family, and by way of caution, only that they should not have too high of expectations of them. With that they assumed the children were reasonably normal and would respond favorably to the love and security they had to provide these children.

5. In 1983 that was also the idea of the Department: that children from very difficult family situations, without any obvious physical handicaps, would tend to overcome their unfortunate start and make up for lost ground more or less steadily in a home with the proper nurturing atmosphere.

6. Initially it was thought by the Strands that the problems they observed with the children were a result of the trauma of separation from their foster parents. Joshua was doing some "head banging" and Dianna was observed to have some delays in motor skills development. Despite their best efforts, however, things got worse. Much worse.

7. Nonetheless the Strands entered into an adoptive placement agreement with the Department on May 25, 1982, and they were made adoptive parents by a court in Cassia County on March 11, 1983.

8. Dianna turned out to have an IQ of about 72, and is therefore somewhat retarded. She has some physical difficulties resulting in hand bone and muscle underdevelopment and therefore does not have fine motor control for writing and even using a toothbrush. She was in special education classes and has not yet completed high school. After puberty her adolescence became more troublesome with Dianna being frustrated by rejection from normal children, and so she turned to those considered to be on the "periphery" and who were involved with tobacco, alcohol, drugs and sex. She has been described as a victim looking to be victimized. She has expressed suicidal ideation. Her running away and trespassing, and stealing, caused her detention repeatedly and when she became too difficult to handle in the jail, she was by the jail officials sent to State Hospital South in Blackfoot, where she was assessed and released. The Strands are being asked to pay a bill from the Blackfoot facility in the amount of $5,000 for her care and assessment while she was there. She is just recently returned to the Strand home in American Falls, and they fear that she will soon be on the run again.

9. The Strands say they have done everything in their means to help these children and it has been both emotionally and financially a draining experience. One recent expenditure for Dianna was placing her in a special juvenile program in Oregon, from which she could not run away,, it being on a desert, and this cost $5,000 for the first month. The Strands could not afford a second month. They claim that they have never received a penny from any source other than Ben Strand's employee assistance plan, which permitted 12 counseling sessions per family member per year.

10. The Strands learned on the Internet about the Federal Title IVE Adoption Assistance Program, and applied for post legal adoption assistance on November 1, 1996. They testified that none of the pre-adoption caseworkers told them about the possibilities of adoption assistance for these children were considered to be children in need because they were to be adopted together as siblings.

11. The Department testified that the file contains no reference to any discussion with the Strands about adoption assistance. A procedure of documenting these now routine discussions with prospective adoptive parents was not implemented until after this adoption took place. Adoption Program Specialist Meri Brennan testified that she was an adoptions caseworker during the time of this adoption, and even though the state plan for adoption assistance had been approved on April 1, 1982, almost a year before this adoption, she was not aware of this benefit until after this adoption period, therefore it is likely that the caseworkers at the time of adoption were also unaware of the adoption assistance benefits.

12. The Strands applied for adoption assistance for Dianna and Joshua on November 1, 1996. The Strands have been appointed guardians and conservators of Dianna, who has turned 18 years of age. Meri Brennan forwarded this request to the office within her division responsible for ascertaining eligibility.

13. On February 21, 1997, the Department's Jackie Cheek, issued a response to Meri Brennan finding Title IVE ineligibility, and Title XIX ineligibility, with the remarks: "R99 App not made prior to adoption finalization. However if app had been made & current program & knowledge employed -- would have been ff [Federal] see narrative."

14. On February 21, 1997, Meri Brennan issued a Notice of Decision to the Strands in letter form, (Exhibit #A) which reads in pertinent part as follows:

This letter is to inform you that your application for federal IV-E adoption assistance benefits for Dianna and Joshua are denied. Federal regulations found at 45 C.F.R. Section 1345.40(b)(1) require that an Adoption Agreement between you and the Department must be in place no later than the date of the final decree of adoption.

The Idaho Department of Health and Welfare periodically receives written guidance from the U.S. Department of Health and Human Services related to adoptions. The federal government has stated that if "extenuating circumstances" were present at the time of the adoption which prevented you from receiving adoption assistance in a timely way, an administrative fair hearing officer may order the Department to attempt to negotiate an agreement with you after the fact. A circumstance which has been considered "extenuating" is when adoptive parents were not offered adoption assistance prior to the adoption finalization. A review of the Department's records does not indicate that adoption assistance was discussed or presented to you before your adoption was finalized.

If you continue to desire adoption assistance or disagree with this Notice, you have the right to request an administrative fair hearing. A copy of the Fair Hearing request form is enclosed with this letter, and it apprises you of rights that you have regarding such a hearing.

If you desire a hearing you MUST complete and mail the request form to the Fair Hearing office address with in twenty-eight (28) days of your receipt of this Notice. If you have any questions, please contact Meri Brennan, Adoption Program Specialist, at 208-334-5700.

15. On March 7, 1997, Kathie Strand filed a request for fair hearing specifying the following issue:

The Dept. Was wrong to denying our request for adoption assistance due to extenuating circumstances. Mainly we, as adoptive parents, were never told about available assistance funding before, during or after the adoption was finalized! We request an informal prehearing conference at American Falls DHW and request copies of all evidence in our casefile to be used by the Dept.

16. Meri Brennan testified that Idaho could have opted for continuing adoption assistance until the child is 21 years of age, but chose the age of 18 as the age at which adoption assistance would terminate.

II. RELEVANT AUTHORITIES

1. The Idaho Department of Health and Welfare has jurisdiction over the subject matter of this appeal under section 56-216, Idaho Code, and IDAPA 16.03.1600 of the Department's rules and regulations.

2. The Petitioner's request for a fair hearing was filed within 30 days of the Department's adverse action and the appeal is therefore timely. IDAPA 16.05.03300.03(a).

3. The purposes of the adoption support program, and the children who are to be served by such program, are set out at IDAPA 16.03.2245:

ADOPTION SUPPORT.. The purpose of the adoption support program is to encourage the legal adoption of children with special needs (see Idaho Department of Health and Welfare Rules and Regulations Section 03.2208,06.) who would not be able to have the security of a permanent home without support payments.

01. Children to be Served. Only children who are hard-to-place according to one(1) of the following guidelines will be served under the adoption support program. Hard-to-place children include circumstances where:

a. The child's ethnic background, race, color, mixed parentage or age make it difficult to find an adoptive home; or

b. The child is a member of a sibling group that must not be placed apart; or

c. The child has physical, mental, emotional or medical handicaps; or

d. The child has established such close emotional ties with a foster family that replacement is likely to be as traumatic to the child as removal from a natural family; and

e. Except in cases of foster parent adoption the child must have been listed with an adoption exchange.

5. Commissioner Dodie Truman Borup, of the Children's Bureau, of the Administration for Children, Youth and Families, of the U. S. Department of Health and Human Services, issued a policy interpretation on December 2, 1988. Exhibit #3. The policy interpretation (ACYF-PIQ-88-06) is presented in a question and answer format in pertinent part as follows:

QUESTION: If the adoptive parents are able to prove to the State agency's satisfaction that all facts relevant to their request for adoption assistance were not represented at the time adoption assistance was discussed, may the State reverse an earlier decision to deny benefits under title IV-E?

ANSWER: Yes, under certain specified conditions. According to the Federal regulations at 45 CFR 1346.40(b)(1), the adoption assistance agreement must be signed and in effect at the time of or prior to the final decree of adoption in order to provide assistance under title IV-E.

However, if there are extenuating circumstances, the adoptive parents may request a fair hearing under section 471(a)(12) of the Act. If the hearing determines that all of the facts were not presented at the time of the request for assistance, the State may reverse the earlier decision to deny benefits under title IV-E.

6. The Department has referred the Hearing officer to the case of Rose Ferdinand v Department for Children and Their Families and Robert L Carl, Director. Case No. C.A. 90-0538P, United States District Court for the District of Rhode Island, May 13, 1991. 768 F. Supp. 401 (D.R.I. 1991) Exhibit #7. The Plaintiff and her ex-husband had adopted an apparently health African American infant who developed a number of disorders which needed special treatment. Even though the Plaintiff had declined the offer for subsidy assistance at the time of the adoption agreement, they maintained that their entitlement to the assistance was inadequately explained. The Plaintiff obtained an injunction from the U. S. District Court for the District of Rhode Island, requiring assistance pursuant to 42 U.S.C. § 673. The court reasoned that the Rhode Island Department for Children and Their Families had failed their "affirmative duty to inform clients of the program and provided the extenuating circumstances necessary to allow the reopening of the Plaintiff's case and, finally, the grant of adoption assistance." The court found that full program explanations were required rather than minimal discussions about the availability of adoption assistance.

7. The Ferdinand court, supra, also addressed the issue of whether the nature of the special needs defect has to be apparent at the time of the adoption to support the finding of the adoptive child being determined as "special needs" child at the time of adoption. The court determined that in that case the fact that the child's needs were not evident at the time of the adoption was not an impediment to negotiating for post adoption assistance based on extenuating circumstances, because this child had an obvious entitlement to special needs status by virtue of the child's being a minority member:

Finally, the fact that Nia's special educational needs were not evident at the time of her adoption does not lead to the conclusion that she was not eligible for Title IV-E assistance as a "hard-to-place" special needs child. According to 42. U.S.C. Section 673(c),supra note 4, race or minority status can enable a child to be classified as a "special needs" child for adoption assistance purposes. 768 F.Supp. 401 at 404. The court also noted that a social services officer had noted in a memorandum that the child was "probably IV-E eligible at the time of adoption" and this statement comports with the court's assessment.

8. Commissioner Wade F. Horn, Ph.D., of the Children's Bureau, of the Administration for Children, Youth and Families, of the U. S. Department of Health and Human Services, issued a policy interpretation on June 25, 1992. Exhibit #4. The policy interpretation (ACYF-PIQ-92-02) is presented in a question and answer format in pertinent part as follows:

QUESTION: Would grounds for a fair hearing exist if the State agency fails to notify or advise adoptive parents of the availability of adoption assistance for a child with special needs?

RESPONSE: Yes. The very purpose of the title IV-E adoption assistance program is to encourage the adoption of hard-to-place children. State notification to potential adoptive parents about its existence is an intrinsic part of the program and the incentive for adoption that was intended by Congress. Thus, notifying potential adoptive parents is the State agency's responsibility in its administration of the title IV-E adoption assistance program. Accordingly, the State agency's failure to notify the parents may be considered an "extenuating circumstances" which justifies a fair hearing.

9. In this case there was no discussion of the availability of adoption assistance program, and this lack of discussion of this assistance constitutes extenuating circumstances sufficient to permit the reversal of the earlier decision to deny benefits under title IV-E.

IV. FINAL DECISION AND ORDER

Based upon the above Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the decision of the Department's Division of Family and Community Services Bureau of Family and Children's Services, denying post legal adoption assistance, is REVERSED and REMANDED for the negotiation of adoption assistance benefits.

This Final Decision and Order shall be effective and implemented within ten (10) working days after the decision is received and no motions for reconsideration shall be granted pursuant to the requirements of IDAPA 16.05.03102.04 and 16.05.03300.09.k, and 11. Appeal of this Final Decision and order may be made pursuant to section 67-5273(2), Idaho Code, within twenty-eight (28) days of the issuance of this Final Decision and Order and shall be governed by sections 67-5270(3) through 675279(1), (3) and (4), Idaho Code. Any party appealing this Final Decision and order shall serve a copy of their Petition for Judicial Review upon the undersigned Fair Hearing office in order for the Fair Hearing Office to comply with the requirements of section 67-5275, Idaho Code.

DATED: August 27, 1997

RONALD D. BRUCE
Hearing Officer
1790 North Westgate Drive
Boise ID 83704

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