New Hampshire Department of Health and Welfare, DAB No. 661 (1985)

GAB Decision 661

June 19, 1985

New Hampshire Department of Health and Welfare;
Garrett, Donald F.; Ballard, Judith A. Teitz, Alexander G.
Docket No. 84-186


The New Hampshire Department of Health and Welfare (State or
Appellant) appealed a determination by the Administration for Children,
Youth and Families of the Office of Human Development Services (ACYF or
Agency) that the State was ineligible for fiscal year (FY) 1982 funds
under section 427(a) of title IV-B of the Social Security Act (Act).
That section provides that a state may receive additional funds for
child welfare services, beyond the amount available to each state under
section 420 of the Act, if the state meets certain requirements for the
protection of children in foster care. /1/

The Agency initially approved the State's request for additional funds
based on a written certification by the State that it met the
requirements of section 427(a). However, the Agency found the State
ineligible for fiscal year 1982 after a review to verify whether the
State had established policies or procedures for implementing the
requirements of the Act. The Agency found specifically that the State
had failed to demonstrate that it had procedures in place by the end of
FY 1982 for holding dispositional hearings of foster care children in
the Superior and Probate Courts of the State. The Agency approved the
certification that procedures for holding dispositional hearings were in
place for State District Court. /2/

(2) As we discuss more fully below, we sustain the Agency's
determination. Although we find that procedures were in place for
Superior Court, we find that procedures were not in place for the
Probate Court until after the end of FY 1982. Since section 427 of the
Act requires assurances that dispositional hearings will be held for all
children in foster care, our finding that one of the three State courts
responsible for the holding of dispositional hearings failed to have
procedures in place leads us to ultimately sustain the Agency's
determination. Background As one condition for the receipt of additional
child welfare funds, section 427(a)(2) requires that a state: (2) has
implemented and is operating to the satisfaction of the Secretary--

* * * (B) a case review system (as defined in section 475(5)) for
each child receiving foster care under the supervision of the State. .
. . Section 475(5) provides, in pertinent part, that: (5) The term
"case review system" means a procedure for assuring that --

* * * (C) with respect to each such child, procedural safeguards will
be applied, among other things, to assure each child in foster care
under the supervision of the State of a dispositional hearing to be
held, in a family or juvenile court or another court (including a tribal
court) of competent jurisdiction, or by an administrative body appointed
or approved by the court, no later than eighteen months after the
original placement (and periodically thereafter during the continuation
of foster care), which hearing shall (3) determine the future status of
the child (including, but not limited to, whether the child should be
returned to the parent, should be continued in foster care for a
specified period, should be placed for adoption, or should (because of
the child's special needs or circumstances) be continued in foster care
on a permanent or long-term basis); and procedural safeguards shall
also be applied with respect to parental rights pertaining to the
removal of the child from the home of his parents, to a change in the
child's placement, and to any determination affecting visitation
privileges of parents. There are two stages to the Agency's review of
whether a state complies with the requirements of section 427. The
first stage is a review of whether sufficient policies or procedures
were in place to fulfill the requirements of the Act. If a state passes
this first stage, the Agency conducts a review of a sample of cases to
determine whether, in practice, a state is complying with the Act in a
sufficient number of cases. The Agency's review of state policies and
procedures to determine compliance with section 427, the stage at which
the State here was found out of compliance, is derived from the language
of the above provisions. Section 427(a)(2)(B) requires implementation
of a "case review system" which, as defined in section 475(5), includes
a "procedure for assuring that -- (C) . . . procedural safeguards will
be applied . . . to assure each child in foster care under the
supervision of the State of a dispositional hearing . . . ." Because the
Agency determined that the State did not have adequate procedural
safeguards, the Agency never conducted a review of a sample of case
records to determine whether the state was "operating to the
satisfaction of the Secretary - (B) a case review system. . . ."
(emphasis added). Section 427(a)(2) of the Act. If the Board had
decided to reverse the Agency's determination, the Agency has explained
that it would then conduct a case sample review before determining
whether the State was entitled to the $98,946 under section 427.
Agency's Brief, p. 9. The State self-certified its eligibility for
section 427 funds for FY 1982 in February 1982. Agency's Brief, p. 3.(
4) The Agency allowed the State until the end of the fiscal year,
however, to actually comply with the terms of the Act. /3/

The Agency denied section 427 funding for FY 1982 because it found that
the State had not sufficiently demonstrated compliance with the Act by
September 30, 1982, the end of FY 1982. The Agency allowed funding for
FY 1983 and based its determination for FY 1982 on the conclusion that
the State did not have acceptable procedures in place by the end of FY
1982. Below, we first address the statute's requirement for assuring
dispositional hearings and why the State's efforts to comply were
insufficient for fiscal year 1982. We next address the timing question
of whether procedures that were found minimally acceptable for FY 1983
were also in place by the end of FY 1982. We conclude that these
procedures were not in place for Probate Court, although they were for
Superior Court. After addressing two other arguments of the State, we
finally conclude that the Agency's determination must be upheld, since
procedural safeguards did not exist in Probate Court by the end of FY
1982 to assure dispositional hearings for foster care children. I. The
State failed to comply with statutory requirements Although the issue
before the Board as articulated by the Agency is when proper procedures
were in place, the State's appeal also raised the issue of what
procedures are required by the statute. The State's method for assuring
dispositional hearings prior to the end of FY 1982 was simply to rely on
an unwritten policy that personnel of the State Department of Health and
Welfare would bring children into court for dispositional hearings. /4/

(5) We conclude that the Agency's position in requiring some more formal
mechanism for assuring dispositional hearings of foster care children is
based on what is minimally required by the federal Act. The statute
requires implementation of a "case review system," defined as a
procedure for assuring that "procedural safeguards" will be applied to
"assure each child in foster care under the supervision of the State of
a dispositional hearing." Sections 427(a)(2), 475(5)(C). It is clear
that a system for assuring that timely dispositional hearings are held
must demand something more than a voluntary effort on the part of case
workers to apply for hearings in the State courts, where there is no
assurance that the State courts will respond. Instead, the Agency
accepted for FY 1983 and required also for FY 1982 that, at a minimum,
meetings be held with judges of the relevant court systems to inform
them of the Act's requirements and the efforts of the Department of
Health and Welfare to comply with its terms. Although the State argued
that it lacked notice of this requirement and thus should not be bound
by it, /5/ we find this point unpersuasive because we fail to see how
the State could have reasonably thought that an unwritten policy
directed at the actions of caseworkers, rather than the courts, could
constitute a procedure for assuring that dispositional hearings would be
held in a timely manner, as required by the statute. Further, the State
itself in effect recognized the need for a more official policy by its
efforts toward the end of FY 1982 to communicate with representatives of
the Probate and Superior Courts.

(6) The foster care provisions of title IV-B of the Act were enacted in
June 1980 as the Adoption Assistance and Public Welfare Act of 1980,
Pub. L. 96-272. The Act was designed to provide a financial incentive
to states which establish a system that effectively guarantees
appropriate placements for foster care children, and was intended more
generally to avoid the problem of "foster care drift," caused, in large
part, by states not actively monitoring the status of children. II.
Probate Court We uphold the Agency's determination that procedures for
holding dispositional hearings in Probate Court for foster care children
as required by section 427(a) of the Act were not in place by the end of
fiscal year 1982. The Agency's initial determination referred to the
lack of evidence tht procedures were in place during FY 1982. See
Appellant's Ex. 2. At the hearing, however, the Agency bolstered its
position by maintaining that it had affirmative evidence at that time
that procedures were not in place by the end of FY 1982. Tr., pp. 145,
153-154. The basis for this statement was an affidavit prepared for the
hearing in this appeal, Appellant's Exhibit 15, Affidavit of the
Merrimack County Probate Judge who is Secretary of the "Probate Judges
Association" of the State. See Tr., pp. 145, 153-4. The Probate
Judge's affidavit declares that he met with representatives of the State
Division for Children and Youth Services on September 2, 1982 to discuss
the requirements of section 427 of the Act, as well as the requirement
of section 475(5)(c) for "procedural safeguards within the 'case review
system.'" Appellant's Ex. 15, pts. 3-4. After resolving what types of
reviews the Probate Court had responsibility for undertaking, he further
affirmed that he distributed the guidelines for these reviews to the
other members of the Probate Judges Association at the Association's
regularly scheduled meeting in October 1982. /6/

(7)$%We agree with the Agency that the State did not have procedures in
place for holding dispositional hearings in Probate Court by the end of
FY 1982. Although the Secretary of the Probate Judges Association may
have met with representatives of the State administrative agency in
September 1982, before the end of the fiscal year, he did not
disseminate any instructions to the other nine probate judges of the
State until October. We conclude that the uncontradicted affidavit of
the Secretary of the Probate Judges Association is sufficient to show
that procedures for holding dispositional hearings in State Probate
Court were not in place until after the end of fiscal year 1982. III.
Superior Court The Board concludes that the State had procedural
safeguards in place by the end of FY 1982 to assure that dispositional
hearings were being held for foster care children in Superior Court. In
so deciding, we rely principally on an affidavit by the Chief Justice of
the State Superior Courts, Appellant's Exhibit 14. This affidavit was
not reviewed by the Agency prior to its disallowance determination, but
was prepared several weeks prior to the hearing before the Board. The
Chief Justice's affidavit declares that he met with all the Marital
Masters of the Superior Court, responsible for holding the dispositional
hearings, on September 11, 1982, for the purpose of assuring that the
relevant requirements of section 427 were in place by the end of FY
1982. At the meeting, the Chief Justice "discuss(ed) the requirements
and materials pertinent" to section 427, as well as "the type of review
which should be conducted to meet the requirements, the importance of
scheduling these reviews, and that the administrative policy and
procedures discussed in connection with these reviews was effective
immediately." Id., points 3-4. /7/

(8)$%The Chief Justice also attested that he spoke by telephone with
several court clerks shortly after the meeting to convey the same
information. The Chief Justice further declared that he sent a
memorandum confirming the September 11 meeting on November 10, 1982,
which "was merely designed to reconfirm that which had already been
presented to all Marital Masters on September 11, 1982 and to the clerks
shortly thereafter." Id., point 9. /8/

The Agency found this affidavit to be sufficient evidence that
procedures were in place for fiscal year 1983, but not for FY 1982. The
apparent basis for the determination that this was insufficient evidence
for FY 1982 was the "gap" in time between the Chief Justice's meeting on
September 11, 1982 and the written confirmation of that meeting on
November 10, 1982. See, e.g., Tr., pp. 112, 119. We find the confirming
memorandum of November 10, 1982 to be sufficient evidence that
procedures were in place on September 11. There is nothing in the
record to refute the statement that a meeting was held on September 11,
1982, prior to the end of the fiscal year. Although as a matter of
evidence there must be some demonstration that such a meeting actually
occurred, confirmation of the meeting could come at any time. The
confirming memorandum itself is not dispositive of whether procedures
were in place, but is only significant insofar as it allows a trier of
fact to decide whether the meeting occurred by the end of the fiscal
year. The State argued in briefing that the Agency's policy that
procedures for holding dispositional hearings be "confirmed in writing"
by the end of the fiscal year was improper, since it was a requirement
beyond those imposed by the Act itself. See, e.g., Appellant's Opening
Brief, eleventh unnumbered page. We agree with the State's argument
insofar as this Agency policy required the September 11, 1982 meeting of
the Superior Court Marital Masters to have been confirmed in writing by
the end of the fiscal year. The State actually seems to have objected
to two requirements that could be construed as being Agency policy: 1)
evidence of the procedures must have been in existence by the end of the
fiscal year, and 2) such evidence must have been in writing. (9) In
regard to the first point, the Agency did not in fact require this
consistently throughout the appeal. If the Agency were committed to a
policy that all evidence of procedures to comply with section 427 must
have been produced by the end of the fiscal year in question, it would
not have considered the affidavits prepared for the hearing in this
appeal. In regard to the apparent policy of the Agency that the evidence
must have been in writing, we do not need to decide this question for
purposes of this appeal. For Superior Court, we have a written
memorandum that a meeting was held in September 1982 to establish
policies and procedures as required by section 427. We are therefore
not presented with the issue of whether oral evidence would have been
sufficient. IV. Other Arguments of the State A. Whether State
regulations required the holding of hearings The State argued at the
hearing that State regulations required the holding of dispositional
hearings in Probate and Superior Court. It introduced an
"Inter-Department Communication" of the Division of Welfare designated
"SR 82-27," which it asserted was a regulation that governed the holding
of dispositional hearings as required by the Act. Appellant's Ex. 16. In
the first instance, it is not clear that SR 82-27 is, in fact, a
regulation. The document is in the form of a memorandum on State of New
Hampshire letterhead. Further, according to the State, there is no
corresponding citation to the State Administrative Code, because of a
waiver of codification requirements for rules promulgated for the period
of time in question here. Tr., p. 76. Although State witnesses
indicated that SR 82-27 was a State regulation, see, e.g., Tr., p. 56,
we have some question as to its status given its informal nature. We do
not finally decide whether SR 82-27 is a binding regulation, however,
because we find that it does not specifically address the requirement of
holding dispositional hearings in State Probate or Superior Court. The
State initially maintained that a section of SR 82-27 entitled "Case
Reviews" required the holding of dispositional hearings in Probate and
Superior Court. Appellant's Ex. 16, p. 2. The State admitted at the
hearing, however, that this section addressed instead the Act's
requirement of holding (10) "periodic reviews" every six months by
either a court or an administrative panel. See section 475(5)(B) of the
Act; Tr., pp. 170-171. The State also explained that only the State's
"annual review" proceeding was designed to fulfill the federal
dispositional hearing requirement, yet admitted at the hearing that SR
82-27 does not address the State's annual review. Tr., pp. 93, 171-173.
/9/

B. Whether the Agency misled the State by approving its procedures A
State witness testified at the hearing that a field representative of
the Agency orally assured the State in January 1982 that the State was
adequately complying with the requirements of section 427 and that the
State should self-certify its eligibility. Tr., pp. 53-55. While the
State did not specifically argue that this constituted a basis for
estoppel, the State implied that somehow this should preclude the Agency
from taking the action here. However, the State's evidence is simply
insufficient to show that the State was, in fact, misled by the field
representative's advice. The State's testimony is far too general to
show that the field representative understood the facts surrounding the
State's efforts to comply with section 427. It is unclear whether the
representative even knew that Probate and Superior Court had
jurisdiction over some of the dispositional hearings or that he had
investigated what system the Department of Health and Welfare had in
place for assuring these hearings. Further, it would have been
unreasonable for the State to rely on his statements, given the
statute's unambiguous language requiring that states provide "procedural
safeguards" to assure foster care children of dispositional hearings.
Section 475(5)(C) of the Act. Conclusion For the foregoing reasons, we
conclude that the State fulfilled the statutory requirement of assuring
"procedural safeguards" for holding dispositional hearings in Superior
Court by the end of FY 1982, but failed to so provide for the State
Probate Court. Since the words of the statute require procedural
safeguards to assure "each child in foster care under the supervision of
the State of a (11) dispositional hearing" (emphasis added), we sustain
the Agency's determination that the State was ineligible for $98,946 in
section 427 funds for fiscal year 1982. /1/ The additional funds are a
proportional share of the amount appropriated for title IV-B
which exceeds $141,000,000, in this case, $98,946. /2/ The
District, Superior and Probate Courts are the three courts of the State
that have jurisdiction over foster care children and each has
jurisdiction over some of the dispositional hearings that are required
by the Act. Although the State argued that a reason for the Agency's
determination was confused over operation of the State's court system,
it never denied that some of the required dispositional hearings are to
be held in Superior and Probate Courts. /3/ The Agency explained at a
hearing before the Board in this appeal that this was a liberal
interpretation of the self-certification process, since it could have
instead required compliance either at the start of the fiscal year or at
the time of self-certification. Tr., pp. 105-106. /4/ The State
argued at the hearing that a State administrative regulation also bound
the Department of Health and Welfare to provide dispositional hearings
for foster care children. As we find below in section IV-A, this
document does not in fact address the dispositional hearing requirement.
/5/ Proposed and final regulations that sought to implement the terms of
the Act did not address how states should devise a case review system
that would assure dispositional hearings for foster care children and
the final regulation for "programmatic requirements" was promulgated
after FY 1982. See Notices of Proposed Rulemaking, 45 Fed. Reg. 86817
(December 31, 1980), 47 Fed. Reg. 30932 (July 15, 1982); Final rules,
47 Fed. Reg. 30932 (July 15, 1982), 48 Fed. Reg. 23104 (May 23, 1983)
(final rules codified in 45 CFR Parts 1355, 1356, and 1357). The Agency
also published "Program Instructions" that provided some guidance in how
states should implement the program, although they also did not address
how to establish a case review system to implement these provisions of
the Act. Appellant's Exs. 3, 10; Board Hearing Ex. H-1. /6/ The
Probate Court system differs from State Superior Court in that it is
less centralized and does not have a chief judge. The Secretary of the
State Probate Judges Association, however, has the responsibility for
distributing guidelines and policy to the other nine probate judges in
the State, Appellant's Ex. 15, pt. 2; Respondent's Hearing Ex. B. The
Agency accepted this authority of the Association's Secretary and, in
fact, accepted his affirmation as sufficient evidence of proper
procedures for fiscal year 1983. Tr., p. 116. /7/ The Agency
never questioned whether the "reviews" discussed in the Chief Justice's
affidavit were understood to be the dispositional hearings as required
in section 475(5)(C) of the Act. The Act also requires the holding of
"periodic reviews" every six months by either a court or an
administrative panel. Section 475(5)(B) of the Act. /8/ The
memorandum from the Chief Justice of the Superior Court to the Superior
Court Marital Masters and Clerks, dated November 10, 1982 and confirming
the September 11, 1982 meeting, is in the record as Appellant's Exhibit
12a. /9/ The State was given the opportunity after the hearing
to submit other documents that addressed the holding of dispositional
hearings under section 427 in Probate and Superior Court, but it
submitted no further evidence.

AUGUST 08, 1985