Legal Decisions: Adoption Assistance

ENTRY ORDER

SUPREME COURT DOCKET NO. 97-441
JUNE TERM, 1998

Kevin and Diane Hogan
v.
Vermont Department of Social and Rehabilitation Services

DOCKET NO. Fair Hearing # 13,474

In the above-entitled cause, the clerk will enter:

Kevin and Diane Hogan appeal from a decision of the Vermont Human Services Board denying their application for federally-funded adoption assistance pursuant to 42 U.S.C. & 673(a). We agree with the Hogans that the Board erred in denying them benefits in connection with their adopted son based on a determination that the child was not eligible for federal Supplemental Security Income (SSI) benefits at the time of the adoption. Accordingly, we reverse.

The relevant fact of the case as found by the Board are not in dispute. The Hogans’ adoptive son was born on April 30, 1991 and placed with the petitioners by a private adoption agency less than a month later. The child’s birth mother relinquished her parental rights, and the Hogans instituted adoption proceedings before the probate court in Chittenden County in November 1991. The adoption was finalized on January 6, 1992. More than two years later, in the spring of 1994, a psychiatrist diagnosed the child as having "pervasive" developmental disability," which the Board characterized as "akin to autism." The Board acknowledged that the child has displayed "disturbing symptoms" of his illness within six months of his birth, bit it stressed that mo neurological or developmental deficits were diagnosed until the child was nearly three years old.

Although the Vermont Department of Social and Rehabilitation Services (SRS) had notified the private adoption agency about the availability of federally funded adoption assistance benefits under 42 U.S.C. & 673, no one made the Hogans aware of the program during the pendency of the adoption proceedings. The Hogans filed an application for the benefits on December 21, 1994. SRS denied the application, and the Board upheld this determination following an evidentiary hearing. The initial decision of the Board was that a child be found retroactively eligible for adoption assistance and that, rather, there had to be a signed agreement between SRS and the Hogans in place at the time of adoption.

The Hogan’s initial appeal to this Court was dismissed on the stipulation of the parties in February 1997 to permit the Board to reconsider its decision in light of written guidance received from the federal Department of Health and Human Services. Specifically, the federal agency advised that (1) the failure of a private adoption agency to notify adoptive parents of the existence of the adoption assistance program during the pendency of the adoption is sufficient grounds for requiring the administrative state agency to conduct a so-called "fair hearing" under 42 U.S.C. & 671(a)(12), and (2) a "special needs" child whose adoptive parents did not receive such notice from the adoption agency is still eligible to receive the adoption assistance benefits as long as the child "meet[s] the eligibility requirements" for SSI benefits. (Emphasis Added.)

The Board conducted a second evidentiary hearing and, on September 2, 1997, again denied the Hogan’s application on the merits. The Hogans claimed two alternative routes to eligibility, one of which required that they show that the child would have been eligible for Supplementary Security Income (SSI) because of disability at the time of the adoption. See 42 U.S.C. & 673(a)(2)(A)(ii). The Board held that, although such a disability has been diagnosed, "it cannot be concluded that at the time of the adoption the child could have been diagnosed as having a [qualifying ] impairment." This appeal followed.

The circumstances before us are unique. Section 673(a) plainly contemplates that an application for adoption assistance benefits will normally be filed prior to the finalization of adoption. We agree that the child’s eligibility under the statute must be determined based on the child’s circumstances at that point in time. The question here is how to interpret the eligibility standards when, through no fault of their own, the adoptive parents were deprived of the opportunity to make an application at the proper time.

A careful examination of the position taken by SRS and the federal agency’s interpretation as expressed in the letter triggering the previous remand reveals that the two views of the issue are fundamentally inconsistent with one another. If, as the federal Department of Health and Human Services advised SRS, the circumstances of this case justify a post-adoption application for benefits, then it follows that these circumstances also permit a post-adoption application for diagnosis of a condition that meets the SSI disability criteria to substitute for the normal pre-adoption diagnosis of such a condition. Otherwise, the remedy for the failure to inform the parents of the program would be illusory because the parents could not show what the diagnosis would have been if the child had been examined for this purpose at the time. As a simple matter of logic, mitigating the unfair deprivation of an opportunity to seek benefits is useless unless there is also a mitigation of the similar deprivation of an opportunity to build the requisite medical record.

End of decision.

For an analysis of this decision, see:
Vermont Supreme Court Decision Affirms A Child's Eligibility for Federal Adoption Assistance on Grounds That He Would Have Qualified for SSI.