Opinion
No. 589 C.D. 2014 No. 590 C.D. 2014
01-06-2015
Robert D. Brown, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Robert D. Brown (Parent) petitions pro se for review of the orders of the Secretary of the Department of Public Welfare (Department) upholding the orders of the Department's Bureau of Hearings and Appeals (Bureau) granting a partial retroactive adoption assistance subsidy for Parent's adoptive child K.B. pursuant to the Subarticle (e), Article VII of the Public Welfare Code (Code), commonly referred to as the Adoption Opportunities Act (AOA). We affirm.
Act of June 13, 1967, P.L. 31, added by Act of December 30, 1974, P.L. 1039, as amended, 62 P.S. §§771-774. As this Court has explained:
The Federal Adoption Assistance and Child Welfare Act of 1980 [(Child Welfare Act)] is incorporated into Title IV-E of the Social Security Act, 42 U.S.C. §§670-679a. It promotes the adoption of children with special needs by providing federal funding to states to provide financial assistance to families willing to adopt children with special needs. Under Title IV-E, each state must enact its own program for administering adoption assistance; however, Pennsylvania has long had its own provisions for financial assistance for adoption, which were added to the [Code]. These provisions added subarticle (e) to Article VII of the [Code], which is entitled [the "AOA]." The Department is the agency responsible for implementation of the [AOA] and was charged with the responsibility to promulgate regulations that establish the criteria for identifying eligible children and adoptive homes.
I.
A.
K.B., a Caucasian male, was born in April 1999 and placed with Parent and his wife as a kinship care home in September 2000. In March 2001, K.B.'s biological parents signed their consent for his adoption. When parental rights are terminated, a child is eligible for adoption assistance under Section 3140.202(b)(4) of the Department's regulations, 55 Pa. Code §3140.202(b)(4), which states:
Section 772 of the AOA defines "eligible child," in relevant part, as:
[A] child in the legal custody of local authorities where parental rights have been terminated pursuant to the procedure set forth in Article III of the act of July 24, 1970 (P.L. 620, No. 208), known as the "Adoption Act," and such child has been in foster placement for a period of not less than six months and where the child has been shown to be a difficult adoption placement because of a physical and/or mental handicap, emotional disturbance, or by virtue of age, sibling relationship, or ethnicity....62 P.S. §772.
(b) The county agency shall certify for adoption assistance children whose placement goal is adoption and who meet the following requirements:
* * *
(4) The child shall have at least one of the following characteristics:
(i) A physical, mental or emotional condition or handicap.
(ii) A genetic condition which indicates a high risk of developing a disease or handicap.
(iii) Be a member of a minority group.
(iv) Be a member of a sibling group.
(v) Be 5 years of age or older.
In June 2001, Parent and a representative from Crawford County (County) CYS (CYS) signed an Eligibility Certification for adoption assistance which stated that K.B. has a genetic condition that indicates a high risk for developing a disease or handicap in that "BOTH PARENTS HAVE DIAGNOSED MH CONDITIONS-WILL CHECK TO SEE IF THIS MAKES HIM ELIGIBLE." (Reproduced Record (R.R.) at 72a). The following day, a notation stated that K.B. was not eligible for a subsidy on that basis because "PARENTS MH ISSUES DO NOT COUNT AS A GENETIC CONDITION." (Id.).
In October 2001, Parent and his wife adopted K.B. Just prior to the adoption, Parent, his wife and CYS executed a September 2001 Adoption Assistance Agreement for K.B. in which he sought Medical Assistance (MA) benefits and the legal costs incident to the adoption, but he did not indicate whether or not he was seeking any cash subsidy for daily maintenance by failing to check either the "no" or "yes" box. The agreement also contained a notice of Parent's right to appeal within 15 days any determination that "results in denial, reduction, or termination of a service...." (R.R. at 89a). Parent did not appeal CYS's determination that he was not eligible for any cash subsidy for daily maintenance.
As the Supreme Court has explained:
The county agency is further charged with executing a binding, written agreement for adoption assistance between itself and prospective adoptive parents "at the time of or before the court issues the final adoption decree." 55 Pa. Code §3140.203(a). Upon the reaching of such an agreement, the county agency is generally responsible for the complete payment of all adoption assistance, with reimbursement from the Commonwealth up to 80 percent. 55 Pa. Code §3140.206. The county may further be eligible for reimbursement from the federal government under the federal Child Welfare Act, should the child also meet federal criteria, which differs slightly from the criteria enumerated in Section 3140.202. Id.; 55 Pa. Code §3140.205. [Under the Child Welfare Act, state and county agencies, known as "title IV-E agencies," may only receive federal reimbursements if the state's adoption assistance program conforms with federal law and regulations. 42 U.S.C. §671(a).]
Ko.B., K.B.'s biological brother, was born in November 2000. In September 2001, Ko.B. was placed with Parent as a foster parent with the expectation that he would return to his biological parents. However, in January 2003, Ko.B.'s biological parents consented to his adoption. In January 2004, Ko.B.'s Child Assessment indicated that his biological father has Tourette's Syndrome. In March 2004, CYS acknowledged custody of Ko.B. and executed an Adoption Assistance Agreement with Parent for Ko.B. in which he sought a daily maintenance cash subsidy of $16.50, MA benefits and over $1,000.00 in expenses incidental to his adoption. Parent and his wife adopted Ko.B. in April 2004.
B.
As he grew, K.B. was a little behind in kindergarten and was pretty good in sports, but nothing signaled a significant delay in his development. However, when he was ten, K.B. was referred for psychoeducational evaluation due to continuing academic difficulties in spite of years of working with an Instructional Support Team and speech/language interventions. In September 2009, he was ultimately diagnosed with mild to moderate mental retardation by a school psychologist.
In December 2010, Parent sent Bureau a letter seeking a fair hearing regarding K.B.'s entitlement to a cash subsidy retroactive to his adoption in October 2001, arguing that he qualified under Section 3140.202(b)(4) of the Department's regulations because K.B. was a member of a sibling group and CYS erroneously determined that they had to be adopted together; that both of his parents were diagnosed with mental health conditions and CYS erroneously determined that their "health issues do not count as a genetic condition;" and that he was diagnosed with moderate mental retardation and was exposed to severe abuse, neglect, multiple placements/caretakers and traumatic events.
As the Department concedes, extenuating circumstances permit retroactive execution or amendment of the Adoption Assistance Agreement such as a change in Parent's circumstances. See, e.g., Laird, 23 A.3d at 1029-30 (holding that an extenuating circumstance exists so that a fair hearing is required under the AOA where, inter alia, there is a "'denial of a request for a change in payment level due to a change in the adoptive parents['] circumstances.'") (citation omitted).
See also Child Welfare Policy Manual, §8.2D.4, Question 4 ("Adoption assistance payments made on behalf of a child cannot exceed the amount the child would have received if s/he had been in a foster family home. Accordingly, a State may negotiate an adoption assistance agreement that automatically allows for adjustments to the adoption assistance payment when there is an increase in the foster care board rate. Alternatively, a State may renegotiate an adoption assistance agreement if the adoptive parents request an increase in payment due to a change in their circumstance and a higher foster care rate would have been paid on behalf of the child if the child had still been in foster care....").
Prior to a February 2011 meeting, CYS found K.B. eligible for an adoption subsidy due to clarification of the sibling group requirement and his deficits at school, but asserted that it could not grant a subsidy prior to the fiscal year beginning July 1, 2010. In March 2011, Parent, his wife and CYS executed another Adoption Assistance Agreement in which K.B. received a $16.50 daily cash subsidy retroactive to July 1, 2010, as well as MA benefits starting September 26, 2000. Parent appealed the agreement (3/11 appeal), arguing that K.B.'s subsidy should be retroactive to his date of adoption in October 2001 rather than July 1, 2010, as stated in the agreement.
C.
In December 2011, a Bureau Administrative Law Judge (ALJ) conducted hearings in the 3/11 appeal regarding K.B.'s eligibility date for retroactive assistance. Parent testified that they adopted K.B. when he was two-and-a-half years old and K.B. "did a lot of crying," but he did not observe anything that signaled any significant delays. (R.R. at 320a). He stated that K.B. started having learning issues in kindergarten and K.B.'s teacher gave K.B. basic tests that indicated mild retardation, but he did not follow up with a psychologist or a medical professional because he was counseled not to do so by the school principal. He testified that he did not notice delays at home and that K.B. could dress and eat by himself; K.B. did not have coordination issues and participated in baseball, football and basketball; and K.B. did not need any medication. He testified that K.B. was not tested or seen by a professional while in first, second or third grade, but that K.B. was tested and diagnosed with mild to moderate retardation in the fourth grade.
Parent stated that he questioned CYS's initial denial of the subsidy for K.B. in June 2001 because he found out that both of K.B.'s parents have a mental health problem and K.B. should have qualified because he has a genetic condition that indicated a high risk of developing a disease or a handicap. He stated that he went ahead with the adoption without seeking the subsidy based on CYS's representation that K.B. was not eligible. He testified that he also did not seek the subsidy as a sibling group due to CYS's representation that K.B. did not qualify because K.B. and Ko.B. were not adopted together, even though they both lived with him at that time and he received the subsidy for both while they lived with him in foster care.
Michael Paff (Paff), a school psychologist, testified that he conducted psychological evaluations of K.B. in the fourth and sixth grades to determine if there was a disability and the need for any specially designed instruction. He stated that as a result of testing and information obtained from K.B.'s teachers, he determined in September 2009 that K.B. has been suffering from mild to moderate mental retardation for a significant period of time.
County Program Manager William Lilley (Lilley) testified that K.B. was found to be eligible for the subsidy as part of a sibling group and due to his deficits prior to the February 2011 meeting and the execution of the March 2011 Adoption Assistance Agreement. He stated that they executed the agreement not as part of a settlement, but because K.B. was eligible for the subsidy on both of these bases at that time. However, he testified that he, individually, did not have authority to authorize the requested retroactive payments before July 1, 2010.
County Training Supervisor Meredith Ketchum (Ketchum) testified regarding the March 2001 Eligibility Certification for adoption assistance that she filled out assessing K.B.'s eligibility for the subsidy. She stated that they believed that K.B.'s biological parents both had "mental health issues" and wanted to see if that would make K.B. eligible for a subsidy, but that the parents did not have "a genetic condition that would give them a high risk;" his parents didn't have a mental condition that would actually qualify him such as "schizophrenia, or anything like that." (R.R. at 325a). She stated that her inquiry was based on her contact with K.B.'s biological parents and that they were never diagnosed with anything that would support a subsidy based upon a genetic condition because they refused to follow through with testing. However, she acknowledged paperwork from Ko.B.'s adoption in 2004 which indicated that his father was diagnosed with Tourette's Syndrome. She testified that K.B. also didn't qualify as a sibling group because he and his brother were not being adopted at the same time as a sibling group.
County Fiscal Supervisor Sherry Stanton (Stanton) testified that she reviewed the criteria, but they had nothing in the file that could defend a subsidy based on a mental health issue or a genetic issue. She stated that K.B.'s biological parents were required to go for testing, but that never occurred. She identified a liability update which indicated that K.B.'s biological father was authorized for services, but that he never actually had the psychological evaluation.
Following the hearing but before the ALJ issued a decision, in February 2012, CYS's Associate Director sent Parent a letter stating that the County renounced the March 2011 Adoption Assistance Agreement stating that it did not have the authority to begin or to retroactively pay the subsidy, and that the payments should stop because only the Bureau could determine whether a retroactive payment is owed. The letter stated that, as a result, the ALJ's decision will dictate whether K.B. was entitled to a subsidy and whether retroactive payment and/or a current subsidy are owed. Parent also appealed this letter (2/12 appeal). In February 2012, the ALJ reopened the record in the 3/11 appeal to consider the letter and resolve CYS's action in this regard in that appeal. As a result, in April 2012, the Bureau issued an order staying Parent's 2/12 appeal pending the outcome of his 3/11 appeal.
D.
In October 2012, the ALJ determined that K.B. was not entitled to the subsidy under Section 3140.202(b)(4)(ii) based on a genetic condition because Ketcham and Stanton both credibly testified that K.B.'s "biological parents did not have actual documented mental health diagnoses or genetic issues at the time of child K.B.'s adoption because both refused testing." (R.R. at 172a). The ALJ also noted that Parent did not appeal the 2001 CYS decision that K.B. was not eligible for the subsidy and Parent "provided credible testimony that child K.B. was a little behind in kindergarten, was pretty good in sports, but nothing signaled a significant delay." (Id.).
However, the ALJ determined that the cash subsidy portion of the September 2001 Adoption Assistance Agreement should have been marked "yes" with a negotiated amount of $0 because this is a prerequisite to receiving MA benefits, and CYS entered into the March 2011 Adoption Assistance Agreement which is only permitted when an initial agreement is negotiated with a $0 cash subsidy amount. The ALJ determined that "the logical conclusion" to be drawn from the September 2001 agreement is that "the Cash Payments Daily Maintenance Rate should have been marked 'yes' in the amount of $0." (R.R. at 172a). As a result, the ALJ issued an order sustaining Parent's 3/11 appeal and directing CYS to enter into an Adoption Assistance Agreement with Parent retroactive to September 2009, the date K.B. was diagnosed as moderately retarded, based on a change in circumstance.
ALJ also determined that K.B. was not entitled to the subsidy as a member of a sibling group under Section 3140.202(b)(4)(iv) of the Department's regulations because Ko.B.'s September 2001 placement with Parent was as a foster child with the expectation that he would return to his biological parents, and there was no placement goal of his adoption when K.B. was adopted in October 2001. The Bureau also issued a Rule to Show Cause to Parent for the 2/12 appeal as to why it should not be dismissed due to collateral estoppel. After considering Parent's response to the Rule, another Bureau ALJ dismissed the appeal based on collateral estoppel.
Parent appealed the Bureau's adoption of the orders disposing of the appeals and the Secretary granted reconsideration of both. (See R.R. at 27a, 182a). However, the Secretary ultimately upheld the Bureau's orders in both cases and Parent filed the instant appeals.
CYS intervened in the appeals, but was precluded from filing a brief and we granted Parent's motion to consolidate the appeals.
II.
In these appeals, the only issue is whether Parent is entitled to retroactive subsidy payments under Section 3140.202(b)(4)(i), (ii) or (iv) of the Department's regulations as of the date of K.B.'s adoption in October 2001 because he met the requirements of those subsections at that time. As explained, retroactive subsidy payments can be made where one of the six instances warranting the application of the extenuating circumstances doctrine is shown. See Laird, 23 A.3d at 1029-30.
This Court's scope of review is limited to determining whether legal error has been committed, whether constitutional rights have been violated, or whether necessary findings of fact are supported by substantial evidence. Allegheny County Office of Children, Youth and Families v. Department of Public Welfare, 800 A.2d 367, 370 n.5 (Pa. Cmwlth. 2002).
We agree with the Secretary that K.B. was not entitled to the retroactive award of subsidy payments to the date of his adoption under either Section 3140.202(b)(4)(i) or (ii) because it was not shown that he had special needs or a genetic condition indicating a high risk of developing a disease or handicap at that time, or that CYS withheld any information or erroneously determined that he was not entitled to the subsidy under those provisions.
See Greene County Children and Youth Services v. Department of Public Welfare, 913 A.2d 974, 981 (Pa. Cmwlth. 2006), appeal denied, 928 A.2d 1291 (Pa. 2007) ("In the absence of a diagnosis at the time of adoption, even if rendered retroactively ..., the adoptive parents did not meet their burden to establish that [the child] was a special needs child at the time of adoption [under §3140.202(b)(4)(i)]. Furthermore, the Parents cite no authority to support their position that the statements in the child profile concerning mental illness and certain diseases in the birth family constituted proof of a genetic condition indicating high risk of developing a disease or handicap under §3140.202(b)(4)(ii)....").
Parent testified that at the time of the adoption, he did not observe anything that signaled any significant delays and did not notice any developmental delays until kindergarten, and while testing indicated mild retardation, he did not follow up with a psychologist or a medical professional until Paff testified that he determined in September 2009 that K.B. had been suffering from mild to moderate mental retardation for a significant period of time. Likewise, Ketcham and Stanton both credibly testified that there was nothing in the file to support a finding that K.B. had a genetic condition indicating a high risk of developing a disease or handicap at the time of adoption because his biological parents did not have any actual documented mental health diagnoses or genetic issues at the time and they refused to follow through with testing.
Substantial evidence likewise supports the Secretary's determination that K.B. was not entitled to the retroactive award of the subsidy under Section 3140.202(b)(4)(iv) as a member of a sibling group at the time of his October 2001 adoption or that CYS withheld any information or erroneously determined that he was not entitled to the subsidy under that provision. See Section 772 of the AOA, 62 P.S. §772 (defining "eligible child" in relevant part as "where the child has been shown to be a difficult adoption placement because of ... sibling relationship...."). See also Section 673(c)(2)(A) of the Child Welfare Act, 42 U.S.C. §673(c)(2)(A) ("For purposes of this section, a child shall not be considered a child with special needs unless ... the State has first determined ... that there exists with respect to the child a specific factor or condition (such as ... membership in a ... sibling group ... ) because of which it is reasonable to conclude that such child cannot be placed with adoptive parents without providing adoption assistance under this section..."). Parent testified that K.B. was placed in his home before Ko.B. was even born, and that Ko.B.'s September 2001 placement with him was as a foster home placement with the expectation that he would return to his biological parents and did not have a placement goal of adoption at the time of K.B.'s October 2001 adoption. (R.R. at 320a-321a). Parent stated he did not adopt Ko.B. until April 2004. (Id. at 321a).
Finally, the Secretary properly determined that Parent had demonstrated a change in circumstance warranting the retroactive award of the subsidy due to K.B.'s September 2009 moderate mental retardation diagnosis. In fact, the Department concedes that the Secretary properly found that extenuating circumstances permit a retroactive subsidy based on the instant change in Parent's circumstances. (See Amended Brief for Respondent at 11-12).
Because Parent concedes that CYS made a lump sum adoption subsidy payment of the balance due under the March 2011 Adoption Assistance Agreement and has resumed monthly subsidy payments, (R.R. at 25a), and because Parent cannot be awarded interest on the retroactive payments, Ross v. Department of Public Welfare, 811 A.2d 1076, 1078-79 (Pa. Cmwlth. 2002), appeal denied, 825 A.2d 640 (Pa. 2003), and because our disposition of the foregoing issue determines K.B.'s rights to the retroactive and prospective subsidy payments and the Department's duty in this regard, we will not address Parent's remaining claims. See Britt v. Department of Public Welfare, 787 A.2d 457, 460 n.5 (Pa. Cmwlth. 2001) ("The courts will not enter judgments or decrees to which no effect can be given...."). --------
Accordingly, the Secretary's orders are affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 6th day of January, 2015, the orders of the Secretary of the Department of Public Welfare dated March 11, 2014, at Nos. 075-11-0007 and 075-12-0005, are affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Allegheny County Office of Children, Youth and Families v. Department of Public Welfare, 912 A.2d 342, 344-45 (Pa. Cmwlth. 2006) (citation and footnote omitted).
Laird v. Department of Public Welfare, 23 A.3d 1015, 1020 (Pa. 2011).