Opinion
Record No. 0794-92-4
August 24, 1993
FROM THE FAMILY COURT OF FAIRFAX COUNTY DAVID S. SCHELL, JUDGE
This case was filed in September 1991, at which time the Juvenile and Domestic Relations District Court of Fairfax County was acting as an experimental family court pursuant to Code § 20-96.1 (1991). Code § 17-116.05:5 (1992) provides that cases originating in an experimental family court involving the civil support of a child may be appealed to the Court of Appeals.
Kathleen H. MacKay, Assistant County Attorney (Robert Lyndon Howell, Acting County Attorney, on briefs), for appellant.
Gerard S. Rugel for appellees.
Present: Judges Barrow, Willis and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Fairfax County Department of Human Development (the Department) appeals the denial of its request for child support from Joanne and Stephen Sokol (the Sokols), the natural parents of Bradley Sokol, a minor with disabilities, who is in the Department's custody. On appeal, the Department argues that the trial court erred by failing to award support pursuant to Code § 16.1-290 to reimburse the Department for its costs incurred in placing Bradley in a residential setting. We disagree and affirm the judgment of the trial court.
BACKGROUND
The parties are familiar with the facts of this case; therefore, we restate only those facts necessary to explain our decision. Bradley is a 15-year old child who was born with Down's Syndrome and suffers from an attention deficit disorder. On June 3, 1988, the Sokols voluntarily relinquished custody of Bradley to the Department when his behavior at home and in school became unmanageable. The Department, on June 20, 1989, placed Bradley in a residential program at the National Children's Center (NCC) in Washington D.C., where he currently resides. NCC specializes in the residential care of children with disabilities. The Department is responsible for paying the institutional costs of Bradley's care while the Fairfax County School Board (School Board) pays for his educational expenses.
This case involves an application of the federal "Individual with Disabilities Education Act" (the Act) as set forth in 20 U.S.C. § 1400. The Act mandates that a handicapped child receive a free appropriate public education supported by such services as are necessary to permit the child to benefit from the instruction. Such instruction and services must be provided at public expenses and under public supervision. In addition, the Act requires an Individualized Educational Program (IEP) be issued annually for each child with a disability. On February 28, 1991, an initial IEP was completed for Bradley by NCC recommending that he remain in a residential program. This IEP was signed, inter alia, by the Sokols and Sue Cooper, a School Board representative.
An IEP is an educational planning tool used to identify educational needs and goals of children with disabilities.
On September 9, 1991, the Department requested the trial court to enter a support award against the Sokols. Thereafter, on December 11, 1991, the School Board issued a revised IEP for Bradley recommending that Bradley be placed in a public day program for mildly retarded children. This second IEP was signed, inter alia, by Sue Cooper and Diane Cobb (a representative from the Department). The Sokols signed with their objections noted. The Sokols disagreed with the new assessment and initiated an administrative review of the decision with the School Board. The Sokols' administrative review was pending at the time the trial court heard the Department's motion for child support.
On March 23, 1992, the trial court entered an order, as follows:
1) No child support awarded at this time.
2) To provide child support would be inequitable and unfair considering that administrative appeals are continuing re FAPE because
3) To award child support violates provision Title 34 Reg 300.302. (Non-medical care and room and board must be at no cost to parents of child.)
4) Court has jurisdiction to consider provisions of IDEA when DHD filed action in this court for child support from parents. (16.1-290, 278 241A.4 241.G)
Attorney's fees request by Sokols taken under advisement.
It is from this order that the Department appeals.
MOTION FOR CHILD SUPPORT
Trial courts are vested with broad discretion in making decisions as to the maintenance and support of minor children. "A trial court's determination of matters within its discretion is reversible on appeal only for an abuse of that discretion, and a trial court's decision will not be set aside unless plainly wrong or without evidence to support it." Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990) (citations omitted).
The Department argues that it is entitled to child support pursuant to Code § 16.1-290. That Code section provides the statutory basis for the Department to receive child support from the parents of a child in its care. While the best interest of the child is the paramount concern in any child support hearing, the trial court must consider the needs and resources of the parties and the equities of the case. See Code §§ 16.1-227, 16.1-290; see also Watkinson v. Henley, 13 Va. App. 151, 160-61, 409 S.E.2d 470, 475 (1991) (equities considered in varying from the presumptive guideline amount of support).
At the child support hearing, the Department's evidence showed that it had custody of Bradley and that it was paying for the residential component of Bradley's placement at NCC. The Sokols argued that, under the Act, Bradley was entitled to free education and non-medical care and room and board, and, therefore, the Department was not entitled to support. In support of their position, the Sokols rely on 34 C.F.R. § 300.302, which states: "if placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child."
The parties agree that in order for the residential component of Bradley's care to be covered under the Act the School Board must "place" the child in the residential setting. The Department contends that the School Board had no part in Bradley's residential placement and, therefore, he had no right to free non-medical care and room and board. The Sokols argue that the School Board acquiesced in the finding that Bradley required residential placement.
Notwithstanding the controversy between the parties as to whether the School Board acquiesced in or adopted the first IEP prepared by NCC as their own, the School Board prepared a subsequent IEP which was currently being reviewed through the administrative appeals process with the School Board. If the Sokols prevail in that appeal, Bradley will be entitled to free education and non-medical care and room and board, and it is probable that no support would be due the Department. If the Sokols are unsuccessful in their appeal, the child may be returned to the parents' custody and educated in a non-residential day program. Accordingly, at the time of trial it remained unclear what expenses the Department would incur in the immediate future for Bradley's maintenance and support.
While the trial court is authorized to make an award for child support based on the child's immediate expenses, it is not required to do so. The trial court properly considered all the evidence and found that no child support should be awarded at that time because "[t]o provide child support would be inequitable and unfair considering that administrative appeals are continuing re FAPE."
Viewing the evidence in the light most favorable to the Sokols, as the prevailing party below, we cannot say that the trial court's finding that it would be inequitable and unfair to award support at this time is clearly erroneous. "Any award must be based upon the evidence . . . [and] be related to the actual needs and expenditures made or to be made on behalf of the child 'within the immediate or reasonably foreseeable future.'"Young v. Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 (1986) (citation omitted). The fact that an administrative appeal was pending affected the foreseeability of the child's immediate needs and expenditures. In addition, the trial court properly considered the pending appeal for purposes of evaluating the equities of the case.
The trial court was aware that if the Sokols prevailed in their administrative appeal the Department would not have been entitled to support for the period covered by the second IEP dated December 11, 1991. However, if support had been ordered, any monies paid while the appeal was pending could not be recouped by the Sokols. See Reid v. Reid, 245 Va. 409, 415, 429 S.E.2d 208, 211 (1993). Accordingly, the evidence supports the trial court's determination that it would be unfair to order support before the administrative appeal process was completed. Therefore, we affirm the trial court's judgment.
We view the third paragraph of the trial court's order as mere surplusage and not necessary to a determination of the cause that was before the trial court. That matter was subject to a pending administrative appeal. Although that circumstance was proper to consider in determining whether to award child support, it did not vest the trial court with jurisdiction to determine whether Bradley was entitled to free non-medical care and room and board.
For the reasons set forth above, we affirm the trial court's denial of child support while the administrative appeals process was ongoing.
Affirmed.