Monday, March 8, 2010

Ohio Department of Job and Family Services' Legal Staff Cite the Federal Child Welfare Policy Manual in Adminstrative Appeals of Hearing Decisions

Ohio Job and Family Services (ODJFS) legal staff have been citing and quoting from the online federal Child Welfare Policy Manual in administrative appeals decisions. The administrative appeal reviews state administrative hearing decisions. ODJFS legal staff serve as administrative review officers. In at lease three instances, provisions of the Child Welfare Policy Manual have served a basis for overruling hearing decisions and finding in favor of the adoptive parents.

ODJFS adoption staff have employed the Child Welfare Policy Manual as the primary reference in revising the state Title IV-E adoption assistance rules scheduled to go into effect on April 1, 2010. The recent trend of ODJFS legal staff to cite the Child Welfare Manual to explain and clarify state adoption assistance rules is a good sign for adoptive parents. Adoptive parents should qoute and cite relevant provisions of the Child Welfare Policy Manual as well as state rules in situations involving their child’s eligibility and in negotiating adoption assistance agreement, as well as in state administrative hearings. The federal manual may be used to:

- Clarify existing state rules, and/or

- Clarify policy when state rules are vague, confusing or non-existent, and/or

- Correct rules that are contrary to federal law.

Example: Negotiation of Adoption Assistance Agreements

Two 2009 ODJFS administrative appeal decisions clarified those criteria and procedures in the OAC rule by finding that the counties in question had failed to negotiate with the adoptive families in compliance with state and federal laws. In elaborating on the requirements for negotiation, the administrative appeal decisions both quoted extensively from Section 8.2D.4 of the federal Child Welfare Policy Manual as follows: “Title IV-E adoption assistance, “stated the appeals decisions

is not based upon a standard schedule of itemized needs and countable
income. Instead, the amount of the adoption assistance payment is
determined through the discussion and negotiation process between the adoptive
parents and a representative of the State agency based upon the needs of the
child and the circumstances of the family. The payment that is agreed upon
should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.

The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement.

Consideration of the circumstances of the adopting parents has been interpreted by the Department by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment. (Empasis added)

[See Docket Number: AA-3952, Appeal No(s) 1477168 IVE), June 23, 2009 and Docket Number: AA-4651, Appeal No(s) 1499112, December 3, 2009.}

Example: Termination of Adoption Assistance

A more recent appeal involved a case in which the agency moved to terminate a child’s adoption assistance because he was in out of home care and the agency contended that the parents were not providing support for the child. The case was complicated by the fact that the child had turned 18. [See Docket Number AA-5044, Appeal Number 1541862, Decided March 3, 2010].

The parents lost their state administrative hearing even though they presented evidence that the existing adoption assistance agreement had been negotiated from $1,200 per month to $300 per month with $900 going to support their son’s out of home care.

The parent’s also presented testimony that their son was mentally disabled and therefore qualified to receive adoption assistance until the age of 21. In addition, the young man’s case plan called for him to return home to the care of his parents.

In filing for an administrative review, the parents reiterated that they continued to support their son through the revised adoption assistance agreement and by providing additional food and clothing to their son.

The parents cited state rule OAC rule 5101:2-49-13(B), which states:

An adoptive parent(s) is supporting the child when the adoptive parent(s)
provides the child with shelter, food, and clothing. Parents are generally
responsible for the support of their minor child who is under eighteen years
of age or their physically or mentally disabled child who is under the age
of twenty-one.

Then, they turned to the Child Welfare Policy Manual and asked if the rule meant that that the parents had to provide 100% or some other portion of the support? They contended Question 2, Section 8.2D.5 clarifies OAC 5101:2-49-13(B) by posing and answering the following question:

Question: Section 473(a)(4)(B) of the Social Security Act states that no adoption assistance payment can be made, "to parents with respect to any child if the State determines that the parents are no longer legally responsible for the support of the child or if the State determines that the child is no longer receiving any support from
such parents." When is a parent considered to be "no longer legally responsible for support" or not providing "any support" for the child?

Answer: A parent is considered no longer legally responsible
for the support of a child when parental rights have been terminated or when the child becomes an emancipated minor, marries, or enlists in the military.

"Any support" includes various forms of financial support. The State may
determine that payments for family therapy, tuition, clothing, maintenance of
special equipment in the home, or services for the child's special needs, are
acceptable forms of financial support. Consequently, the State may continue the
adoption assistance subsidy, if it determines that the parent is, in fact,
providing some form of financial support to the child. (Emphasis added)

The administrative appeal reviewer found the parents’ argument persuasive, stating “it is unclear why the PCSA [agency] would renegotiate a new adoption assistance agreement” [which significantly reduced the adoptive payment] . . . . and then proposed “to terminate the adoption assistance altogether. . . . .”

Ruling against the proposed termination, the administrative appeal reviewer quoted Question 3, Section 8.2D.5 of the Child Welfare Policy Manual

Question: Can a State agency automatically suspend the adoption assistance
payment for the duration of an adopted child's placement in foster care? The
State agency would reinstate the payment upon the child's return home.

Answer: No. An automatic suspension is, in effect, the equivalent
to a termination of the adoption assistance payment and as such is unallowable
under section 473(a)(4)(B) if the parent remains legally responsible or is
providing any support for the child. However, consistent with section
473(a)(4)(B) of the Act, there may be circumstances in which adoptive parent(s)
may be eligible for payments in a different amount. In these instances, a State
may re-negotiate the agreement and reduce the payment for the duration of an
adopted child's placement in foster care with the concurrence of the adoptive