Wednesday, October 16, 2019

Discrimination Against Adopted Children in Ohio with the Highest Care Needs

In Ohio, over 70% of children adopted from the foster care system are adopted by their foster parents.  Over 90% are eligible for adoption assistance.  When it comes to negotiating the amount of adoption assistance, however, these adoptive parents usually encounter strong opposition if they propose an adoption subsidy equal to that of the child’s foster care payment rate.  The higher the child’s foster care rate, the stronger the opposition by the county agency.  Foster parents adopting children with extraordinary levels of care are often confronted with demands by the agency for an adoption assistance agreement that is less than half of the child’s foster care payment rate. 

In practice, Ohio’s adoption assistance program discriminates against children with the most serious problems.  The following example captures the very real patterns of discrimination. 
Mr. and Mrs. Smith become the foster parents of three-year-old Emma.  Based on her extraordinary levels of care, the agency makes foster home payments of $2,000 per month.

Like many foster parents, the Smiths are people of modest means.  In order to address Emma’s  extensive care needs, Mrs. Smith leaves her job as a teacher to become a full-time caregiver.  With one income, the Smiths must manage the family budget carefully, but manage to get by and provide for specialized and ordinary needs. 

In supervising the foster care placement, the agency is quite familiar with the Smith’s situation. Two years and three months after placement with the Smiths, the court grants the agency permanent custody of Emma.  The Smiths have developed a strong emotional bond with Emma and strong commitment to becoming her permanent family through adoption.  The agency actively encourages the Smiths to proceed with the adoption.   

Emma is clearly eligible for federal Title IV-E Adoption Assistance.  As noted previously, federal and state law require that the agency and parents negotiate a written adoption assistance agreement.  The agreements contain provisions for monthly adoption assistance payments and Medicaid coverage that follows the child.  Federal regulations require that adoption assistance agreements be completed before the final decree of adoption, unless extenuating circumstances prevented the adoptive parents from completing an adoption assistance agreement before finalization of the adoption.

The agency contacts the Smiths and proposes an adoption assistance payment of $1,000.  The agency does not invite the Smiths to meet and essentially tell their story about how they plan to address Emma’s care needs and the adjustments they must make.  After consulting with an advocate, they send the agency an e-mail stressing the importance of a comprehensive discussion and cite the federal Child Welfare Policy Manual, which contains authoritative interpretations of federal law.  The Smiths include the following quote.

the amount of the adoption assistance payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the title IV-E 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., childcare.  Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.
 Mrs. Smith points out that the decision to resign from her teaching position is a paradigm example of family circumstances.  She tells the agency that no one expects the adoption assistance to replace a full-time salary or cover all of costs.  The Smiths contend that adoption assistance is a supplement that, when added to their existing family resources, can enable them to address specialized needs without putting a strain on the family’s ability to sustain ordinary, daily needs. 

The agency refuses to recognize the family circumstances as a major issue in determining a sufficient amount of adoption assistance.  The Smiths are told that the agency has never gone over $1,000 per month 

From the messages received, the Smiths realize that,
a.     

  •   The agency “negotiator” is not authorized to enter into an agreement without permission from his superiors
  •  Whether consciously or not, the agency is taking advantage of the Smiths unbreakable love and commitment to Emma. 

After weeks of deadlock, the Smiths request a state administrative hearing.  The hearing is decided in the Smiths’ favor and the agency is ordered to re-enter negotiations with the Smiths that take the child’s ordinary and specialized needs into account, along their family circumstances, such as giving up full time employment and other adjustments made by the Smiths on behalf.  

The agency does not comply with the order to enter into good faith negotiations as outlined in the hearing decision.  Although, federal funding at over 63% is available for adoption assistance payment up to the child’s foster care rate, the county is not compelled by law to match the child’s foster care payment rate.  Even though it is clear that a reduction of $1,000 in monthly support is inconsistent with Emma’s needs and the Smith’s family circumstances, there is the Ohio Depratment of Job and Family Services offers no consitent or reliable remedy for resolving the matter.   

The Smiths face a cruel dilemma.  Their commitment to becoming Emma’s forever parents is tempered by anxiety that an inadequate level of adoption assistance may well place the child’s care needs at risk.   

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