West Virginia Department of Health and Human Services, DAB No. 1257 (1991)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:        West Virginia Department of Health Human Services

DATE:  June 13, 1991
Docket No. 90-200 Decision No. 1257

       DECISION

The West Virginia Department of Health and Human Services (State)
appealed a determination by the Office of Human Development Services'
Administration for Children, Youth and Families (ACYF) disallowing
$445,115.33 in federal financial participation (FFP) claimed by the
State under title IV-E of the Social Security Act (Act) for fiscal year
1985. 1/  The disallowance was based on a review by ACYF of foster care
maintenance payments made on behalf of children who were removed from
their homes and placed in foster care pursuant to a court order.  ACYF
found that, in 44 of a sample of 250 payments, the court orders lacked
either (1) a determination that continuation in the home would be
contrary to the welfare of the child or (2) a determination that
reasonable efforts were made to prevent the child's removal from his
home, or both.  Judicial determinations to this effect are required by
section 472(a)(l) of the Act.  ACYF arrived at the disallowance amount
by projecting the results of this review to the universe from which the
sample was drawn.  ACYF subsequently stated that it had determined that
one of the 44 sample payments (sample case #222) was in fact eligible
for reimbursement under title IV-E, although it did not identify the
resulting reduction in the disallowance amount.  ACYF's brief dated
2/1/91, p. 3, n. 3.

On appeal to this Board, the State disputed ACYF's findings of
ineligibility with respect to 31 of the sample payments (in addition to
the one which ACYF conceded was eligible).  The State also challenged
several aspects of the review procedure.

For the reasons discussed below, we reject the State's challenges to the
review procedure.  We also find that the required judicial
determinations were made in the case of three of the 31 payments
contested by the State (sample cases #46, #91 and #180). 2/ Accordingly,
we reverse the disallowance pertaining to these three payments, as well
as sample case #222, but uphold the disallowance to the extent it is
based on the 40 sample payments which were either undisputed or which we
find were ineligible.

We note at the outset that, in determining whether the State was
entitled to receive FFP in the sample payments, we do not consider
whether the removal of the child from home was appropriate.  There is
evidence in some of the cases in question here which could be used to
establish this fact.  However, Congress was concerned that children were
being moved too quickly into a foster care system where they would then
sometimes languish for years.  Thus, as a check on the judgment of state
agency personnel or others petitioning to have children placed in the
state's custody, Congress made title IV-E funds available only for cases
in which the court issuing the removal order specifically determined
that continuation in the home was contrary to the child's welfare and
that reasonable efforts had been made to prevent the child's removal
from the home.  Accordingly, the issue before us is not whether the
court could have made the requisite determinations, but whether the
State documented that the requisite determinations were in fact made,
and the conditions for title IV-E funding met.

Below, we first describe the relevant statutory authority for the
judicial determination requirement at issue in this appeal as well as
official ACYF interpretations of that requirement.  We proceed to
discuss the State's arguments concerning the review procedure.  We then
discuss in general the State's grounds for asserting that the necessary
judicial determinations were made by the courts.  Finally, we discuss
whether those determinations were made in the case of the individual
payments contested by the State.

Relevant Authority and ACYF Interpretations

Under section 472(a)(1) of the Act, FFP is available in foster care
maintenance payments for a child removed from the home of a relative
only if, among other conditions --

 the removal from the home . . . was the result of a judicial
 determination to the effect that continuation therein would be
 contrary to the welfare of such child and (effective October 1,
 1983) that reasonable efforts of the type described in section
 471(a)(15) of this title have been made.

Section 471(a)(15) in turn requires that, effective October 1, 1983, a
state plan under title IV-E must provide that --

 in each case, reasonable efforts will be made (A) prior to the
 placement of a child in foster care, to prevent or eliminate the
 need for removal of the child from his home, and (B) to make it
 possible for the child to return to his home.

The requirement for a judicial determination to the effect that
continuation of the child in the home would be "contrary to the welfare
of such child" was continued from the foster care program previously
funded under section 408 of the Act.  The "reasonable efforts"
requirement was added when the title IV-A foster care program was
transferred to a new title IV-E by the Adoption Assistance and Child
Welfare Act of 1980, Public Law 96-272. 3/

The legislative history of Public Law 96-272 makes clear that Congress
was concerned that children were being removed from their homes
unnecessarily and placed in foster care.  In discussing the requirement
for a judicial determination, the relevant Senate committee report
described such a determination as "an important safeguard against
inappropriate [state] agency action," and noted:

 The committee is aware that the judicial determination
 requirement can become a mere pro forma exercise in paper
 shuffling to obtain Federal funding.  While this could occur in
 some instances, the committee is unwilling to accept as a
 general proposition that the judiciaries of the States would so
 lightly treat a responsibility placed upon them by Federal
 statute for the protection of children.

Sen. Rep. No. 336, 96th Cong., 1st Sess. 16 (1979).  On the Senate
floor, Senator Cranston described the conference agreement as follows:

     In the past, foster care has often been the first option selected
     when a family is in trouble:  the new provisions will require
     States to examine alternatives and provide, wherever feasible,
     home-based services that will help keep families together . . . .
     Of course, State child protective agencies will continue to have
     authority to remove immediately children from dangerous situations,
     but where removal can be prevented through the provision of
     home-based services, these agencies will be required to provide
     such services before removing the child and turning to foster care.

125 Cong. Rec. 14767 (June 13, 1980).

ACYF regulations implementing Public Law 96-272 contained provisions
requiring that states provide preplacement preventive services and
describe in a child's case plan the services offered and provided.  45
C.F.R. Part 1356.  The regulations did not elaborate on the statutory
judicial determination requirement.

In a policy announcement issued on January 13, 1984, however, ACYF did
address questions regarding the requirement for a judicial
determination.  The policy announcement stated that the judicial
determination must be made "at the time of the removal of a child from
his home" and explained:

 The court, after hearing the evidence, must be satisfied that
 reasonable efforts . . . have been made.  Review and approval of
 the [state] agency's report and recommendation alone are not
 sufficient to meet the requirements of the Act; the court must
 make a determination that the agency's efforts were, in the
 judgment of the court, reasonable for preventing placement.

 With regard to emergency situations, if the agency's judgment
 was that services could not have prevented removal of the child,
 the court at the time of the adjudicatory hearing must find that
 the lack of preventive efforts was reasonable.

ACYF-PA-84-1, State Ex. CC, 4th page.  ACYF also issued two information
memoranda, ACYF-IM-87-28 (October 7, 1987) and ACYF-IM-89-08 (April 17,
1989), which discussed the circumstances under which ACYF would accept
nunc pro tunc court orders as evidence that the requisite judicial
determinations were made. 4/  State Exs. L and D.  Essentially, these
information memoranda made it clear that such orders would be acceptable
only when used "to supply, for the record, something that has actually
occurred, but was omitted from the record through inadvertence or
mistake."  ACYF-IM-87-27, State Ex. L, 1st page.  This information
memorandum further stated that --

 Requested documentation may include the transcript of court
 proceedings and/or the agency's report to the court, or any
 other documentation that would confirm that the information was
 actually presented to the court at the previous hearing and that
 the court made the determination(s) at that time.

Id., 2nd page.

ACYF also issued an information memorandum transmitting a copy of ACYF's
"Financial Review Guide For On-Site Reviews Of The Title IV-E Foster
Care Program."  ACYF-IM-85-25 (August 14, 1985), State Ex. Z.  The
review guide explains to reviewers that the court order (in other than
voluntary placements) "must contain a statement to the effect that
continuation of residence at home is contrary to the welfare of the
child or that placement is in the best interests of the child."  (ACYF
had determined that these two phrases had the same meaning.  See State
Ex. W, p. 6.)  The guide also explained that, after October 1, 1983, the
court order must state either that "reasonable efforts were made to
prevent removal from the home" or "it was not appropriate or in the best
interests of the child to prevent removal from the home."
ACYF-IM-85-25, Attachment A, Title IV-E Foster Care Eligibility Review
Checklist Guide, pp. 2-3.

The checklist for title IV-E reviews included in ACYF-IM-85-25 gave rise
to questions about the judicial determination requirement which were
addressed in ACYF-PIQ-86-02 (May 8, 1986), State Ex. W.  That issuance
explained circumstances which warranted a finding that the appropriate
judicial determination had been made, even where the court order itself
did not contain language to satisfy the statutory requirements.  The
issuance stated in pertinent part:

 The fact that State laws include generic provisions referring to
 a class of children is not sufficient to satisfy the
 requirements of section 472, which relate to an individual
 determination for each child.  However, if State law
 unambiguously requires that removal may only be based on a
 determination that remaining in the home would be contrary to
 the child's welfare (and in the appropriate circumstances, that
 removal can only be ordered after reasonable efforts to prevent
 removal have been made), it must be assumed that a judge who
 orders a child's removal from the home in accordance with that
 State law does so only for the reasons authorized by the State
 statute.  This conclusion can be drawn only if the State law
 clearly allows removal under no other circumstances except those
 required under section 472(a)(1) of the Act.  If a State can
 show that it has such a clear and unequivocal State law, and if
 the court order is expressly based on that law, then the order
 can be accepted as sufficient evidence that the required
 determinations have been made.

ACYF-PIQ-86-02, pp. 2-3 (emphasis in original).  The issuance also
explained that language in a petition submitted to a court would not
suffice to meet the requirements unless the court order expressly
adopted the relevant language of the petition and made clear that a
judicial determination had been made.  Id., p. 5.

Review Process

The review which led to the disallowance was conducted pursuant to
ACYF-IM-85-25, supra.  A brief outline of the review procedures was also
issued earlier (ACYF-IM-85-4, dated January 25, 1985, at State Ex. AA).
The guidelines prescribe a two-stage review process using a random
sample of foster care maintenance "payment units" made by a state during
a given period.  In Stage I, ACYF reviews 50 payments.  If the
dollar-error rate (determined by dividing the dollars in error by the
total dollar value of the payments reviewed) is greater than 10%, then
ACYF determines the payment-error rate.  If the latter rate exceeds 10%,
ACYF proceeds to Stage II and reviews a minimum of an additional 150
payments.  For the Stage II review conducted in this case, ACYF reviewed
250 additional payments.  State Ex. I-B, 4th page.  If ACYF performs
only a Stage I review, only individual ineligible payments identified in
that stage are disallowed. 5/  If a Stage II review is performed, ACYF
extrapolates the Stage II errors to the universe from which the sample
was drawn and disallows FFP in the payments found to be in error.

The State took the position that the disallowance should not have been
based on extrapolation from a sample.  The State did not dispute that
the dollar- and payment-error rates for the Stage I review exceeded 10%
based on the errors identified by ACYF.  However, the State asserted
that it had provided evidence in 1988 (after the Stage II review) which
established that three Stage I payments found ineligible by ACYF were in
fact eligible, and that this would bring the payment-error rate below
10%.  The State contended that the results of the Stage II review should
therefore be ignored, and that only the ineligible payments actually
identified in Stage I should be disallowed.

The State's argument that the results of the Stage II review should be
ignored is flawed in several respects.  First, it assumes that the
evidence which the State provided established that in Stage I, ACYF
incorrectly found three payments ineligible for title IV-E
reimbursement.  However, as discussed later, we find that one of these
payments (sample case #25) was in fact ineligible, as originally found
by ACYF.  (ACYF agreed with the State that the two other payments were
eligible.  ACYF's brief dated 2/1/91, p. 3, n. 3.)  Accordingly, there
is no basis for the State's contention that the dollar- and
payment-error rate criteria for proceeding to the Stage II review were
not met.

Moreover, the State is mistaken that ACYF's policy was to proceed to a
Stage II review only if a state meets the dollar- and payment-error rate
criteria.  While this is one basis for proceeding to a Stage II review,
ACYF's issuances indicate that the decision whether to do so in other
cases was a matter of agency discretion.  ACYF's review guide states in
pertinent part that --

 [i]f the State systems do not appear to be operating properly
 (i.e., there is insufficient documentation available to support
 decisions on the use of title IV-E funds) or if the stage one
 review indicated errors in excess of established error rates, a
 stage two review must be conducted.

ACYF-IM-85-25, supra, p. 6.  In addition, the earlier information
memorandum states in pertinent part that --

 [t]he Commissioner of the Administration for Children, Youth and
 Families may also decide, for reasons other than the established
 error rates, that a stage two review is required in a given
 State to adequately validate its systems and procedures, such as
 a system-wide error or the recurrence of errors found in the
 same State in a prior year.

ACYF-IM-85-4, supra, 3rd page.  Thus, ACYF's policy would have permitted
it to proceed to a Stage II in this case even if it had not believed
that the State met the dollar- and payment-error rate criteria.

Further, at the time that the Stage II review was conducted, the State
had not provided sufficient documentation to show that ACYF incorrectly
found the State to meet the dollar- and payment-error rate criteria.
The documentation on which the State relied was not submitted until the
latter half of 1988, although the Stage II review was conducted in July
1987.  See State's brief dated 1/2/91, pp. 10-11; State Ex. F, H.  The
State argued that ACYF's practice has been to redetermine whether any
basis exists for a disallowance even where a state submits additional
evidence as late as during proceedings before the Board, citing
Connecticut Dept. of Children and Youth Services, DAB No. 952 (1988).
However, the Board expressly stated in Connecticut that it was not
deciding whether documents added to the case record after the section
427 case review at issue there took place could properly be considered
in determining whether the state was in compliance with section 427
since it found that the documents were in the case record at the time of
the review.  Connecticut, supra, p. 23, n. 15.   Moreover, the documents
in question here (i.e., those provided for sample case #25) are not
offered to establish that the results of the Stage II review -- which
was comparable to the section 427 review in Connecticut -- were
incorrect, but merely to support the argument that ACYF should ignore
the results of that review because the results of the Stage I review
were incorrect.   In our view, however, it would be contrary to ACYF's
obligation to ensure that federal funds are properly expended to ignore
a Stage II review which independently establishes that title IV-E
payments were being made to ineligible children.  Accordingly, we
conclude that the disallowance was properly based on the results of the
Stage II review conducted here. 6/

The State also challenged the review process on the ground that ACYF
treated two or more payments which stemmed from a single court order as
individual errors.  The State identified several cases in which two or
three payments on behalf of the same child were each counted as errors
or separate payments on behalf of two or three siblings who were removed
from home by the same court order were each counted as errors.  In the
State's view, this amounted to double- and triple-counting of one error
and biased the sample in favor of ACYF.  The State pointed out that,
while ACYF's review guide required this counting method for the Stage II
review, the guide provided that during a Stage I review, any payments
other than the first for any child should be disregarded.  See ACYF-IM
85-25, supra, Attachment B, p. 3.  The State noted that no explanation
for the inconsistent treatment of such payments had been offered by
ACYF.

ACYF responded by providing an affidavit from the Deputy Commissioner of
the Administration for Children, Youth and Families which justified the
use of a different counting method for the Stage I review on the ground
that this review was intended to determine whether a state's title IV-E
system was functioning properly, and not as "a statistically valid
review for purposes of extrapolation."  ACYF Ex. A.  ACYF also noted
that the review guide gave the State notice that the sample unit for
purposes of the title IV-E review was each title IV-E payment.  Finally,
ACYF asserted that the burden was on the State to demonstrate that the
projections were unreliable under generally accepted principles of
statistical sampling, and that the State had not met that burden.

We conclude that ACYF's counting method was valid.  The purpose of the
Stage II review was to estimate the amount of foster care payments made
for ineligible children, not the number of court orders which did not
satisfy the judicial determination requirement.  Thus, ACYF properly
looked at all of the payments in the sample regardless of whether
multiple payments pertained to a single child or otherwise resulted from
a single error.  This would not bias the estimate, since with a random
sample, payments resulting from a single error should occur with the
same frequency in the universe as in the sample.  Moreover, we do not
see any inconsistency in ACYF's use of a different counting method for
the Stage I review given the fact that the two reviews served different
purposes.  Finally, as ACYF noted, the review guide clearly specified
that the sample would be composed of payment units.  Thus, the counting
method used by ACYF was not arbitrarily adopted for the Stage II review
at issue here but was consistently applied in the case of all Stage II
reviews.

Judicial Determinations

The State made a number of general arguments related to how to interpret
the judicial determination requirement and what documentation ought to
be acceptable to show that the requirement was met.  Specifically, the
State argued that --

 o  Under ACYF's own interpretation in its review guide, a
 statement in a court order that removal is in the best interests
 of the child is sufficient to show that the court made a
 reasonable efforts determination.

 o  The State had a clear and unequivocal State law requiring
 that a child be removed only in circumstances where the
 requisite judicial determinations had been made, and ACYF should
 accept court orders which either explicitly referenced State law
 or which used language derived from State law.

 o  Since West Virginia law permitted a judge to issue a nunc pro
 tunc order only to correct mistakes, ACYF should presume that
 such orders were properly issued and evidenced a judicial
 determination made at the time of removal of the child.

Below, we discuss these general arguments first.  We then apply our
general conclusions to the specific documents offered by the State as
evidence that the requisite judicial determinations were made in
specific sample cases.

We note preliminarily that the issue in the individual cases is whether
the State met the burden of documenting its claims for FFP in the
payments, general notice of which was given by 45 C.F.R. Part 74,
Subpart H.  Recipients of federal grant funds must meet this burden even
in those cases where the grant program is actually carried out by a
sub-grantee or contractor.   See New York City Dept. of Human Resources,
DAB No. 1199 (1990), p. 13.  Thus, while we recognize that the State
courts operated independently of the State agency, the State agency was
nevertheless responsible for assuring that there was adequate
documentation of the determinations required by section 472(a)(1) of the
Act in any case for which it claimed FFP.  The denial of FFP in those
cases where there is inadequate documentation does not necessarily mean
that the court's action was unsound or that the proper social work was
not done, but simply represents a finding that the State agency has
failed to document that its claims met the conditions Congress
established as a prerequisite for title IV-E funding.  Congress
determined that it wished to fund foster care maintenance payments only
where it can be assured that an impartial judge had determined that
removal was necessary for the child's welfare and, if feasible,
reasonable efforts had been made to prevent removal.

The reasonable efforts requirement

The State took the position that the reasonable efforts requirement was
met by a statement in a court order that removal was in the child's best
interests.  This position was based on the wording of ACYF's review
guide that the requirement could be met by a court order stating that
"it was not appropriate or in the best interest of the child to prevent
removal from the home." ACYF-IM-85-25, supra.

ACYF responded that this alternative language was meant to apply only in
emergency situations.  The State argued that ACYF was bound by its own
interpretation and could not repudiate it.

In our view, the State's reading of the review guide is unreasonable.
The language in the review guide has to be read in light of the
statutory language, its legislative history, and ACYF's interpretation
issued in 1984.  First, the statute requires a judicial determination to
the effect that reasonable efforts to prevent removal "have been made,"
and that a state plan provide for such efforts to be made "in each
case."  While Senator Cranston's remarks (quoted at p. 4 above) indicate
that Congress was aware that in some situations immediate removal might
be necessary to protect the child, the statutory wording and legislative
history as a whole indicate that cases in which no effort is made should
be exceptional.  ACYF thus reasonably interpreted the reasonable efforts
requirement in its 1984 policy announcement, when it said:

 With regard to emergency situations, if the agency's judgment
 was that services could not have prevented removal of the child,
 the court at the time of the adjudicatory hearing must find that
 the lack of preventive efforts was reasonable.

ACYF-PA-84-1, supra.  The State's interpretation of the review guide
language as requiring only a best interests statement cannot be
reconciled with the statutory provision, which clearly requires a
reasonable efforts determination separate from the best
interests/contrary to the welfare determination.  The State's argument
also lacks merit for the following reasons:

 o  The wording of the review guide can be reconciled with ACYF's
 earlier interpretation that, in emergency situations, the court
 could alternatively find that the state agency's lack of efforts
 was reasonable.

 o  While the review guide was sent to states for their
 information, nothing in the transmittal indicates any attempt by
 ACYF to change its interpretation of the reasonable efforts
 requirement.

 o  Since the review guide was not issued until August 14, 1985,
 the State cannot reasonably argue that it relied on its
 provisions for the court orders here, which were issued prior to
 that date.

Accordingly, we conclude that a simple statement in a court order that
removal is in the child's "best interests" is not sufficient to meet the
reasonable efforts requirement.  That requirement is met only if the
court explicitly stated a finding to the effect that reasonable efforts
had been made or that the lack of such efforts was reasonable due to
emergency circumstances where immediate removal was necessary to protect
the child.

State law

The State maintained that, at the time of most of the initial removal
orders at issue here, West Virginia's Child Welfare and Domestic
Relations Law unambiguously required that the courts ordering the
removal of abused and neglected children, delinquent children, and
children subject to domestic violence make findings that satisfied the
contrary to the welfare and reasonable efforts requirements. 7/  Thus,
the State argued, ACYF's own policy in ACYF-PIQ-86-02 required ACYF to
"assume" that any court that ordered a child's removal in these
situations did so "only for the reasons authorized by the State
statute."  State brief dated 1/2/91, p. 36, quoting State Ex. W, p. 3.
The State contended that even court orders which did not cite the Child
Welfare Law were acceptable if they used terminology which appeared in
the Child Welfare Law or referred to petitions which cited the Child
Welfare Law. 8/

ACYF took the position that none of the court orders which the State
provided should be accepted under this rationale.  ACYF correctly
pointed out that most of the court orders do not cite any specific state
statutory provision.  (Indeed, in some cases, the State itself did not
identify the specific provision on which it was relying, but generally
referred instead to the "delinquency provisions" or the "abuse and
neglect provisions" of the Child Welfare Law.)  Moreover, according to
ACYF, the Act requires that express findings be in court orders and does
not contemplate speculation by ACYF about what a court had in mind when
it used terminology similar to that of State law.

As noted above, ACYF's own policy interpretation permits acceptance of a
court order where (1) a state shows there is a "clear and unequivocal"
state law permitting removal only where the findings required by section
472 of the Act have been made; and (2) the court order is "expressly
based on that law."   ACYF-PIQ-86-02, supra, p. 3.  This policy is
consistent with the State's position that a court order may contain
evidence that the court was expressly basing its decision on a finding
required by state law, even if the court order does not specifically
cite that law.  Where there is no citation, however, it must be clear
that the court intended to rely on a specific provision of state law
when it issued the order.

While we examine below whether this standard was met on a case-by-case
basis, some of the general reasons why we conclude in particular cases
that it was not met are that: (1) the language of the court order which
the State claimed was similar to the language of a particular provision
of the Child Welfare Law appears in other provisions of the Child
Welfare Law as well; (2) some language in the court order appears to be
drawn from one provision of the Child Welfare Law while other language
appears to be drawn from another provision of that statute; (3) the
court's failure to follow all of the procedures specified in the
provision of the Child Welfare Law which appears on the facts of the
case to provide authority for the order calls into question whether the
court was cognizant of this provision when it issued the order; or (4)
the petition referred to in the order cited a definitional section of
the Child Welfare Law or another provision other than that which the
State claimed was applicable.  In these situations, there is no basis
for inferring that the court necessarily made any findings required by a
particular provision of State law.

ACYF also challenged the State's position that the provisions of the
Child Welfare Law the State said were referenced in particular court
orders unambiguously required findings which satisfied the judicial
determination requirement. 9/   We agree with the State that one
provision of the Child Welfare Law, section 49-6-3(a), is unambiguous.
This section states that the court may order the temporary custody of an
abused or neglected child "if it finds that:  (1) There exists imminent
danger to the physical well-being of the child, and (2) there are no
reasonably available alternatives to removal of the child, including,
but not limited to, the provision of medical, psychiatric, psychological
or homemaking services in the child's present custody."  In effect, this
section requires the court to determine that reasonable efforts to
prevent the child's removal from the home were not possible because an
emergency situation existed, a determination which satisfies the
reasonable efforts requirement.  Thus, we reverse ACYF's finding of
ineligibility in two cases (sample cases #46 and #91) in which the court
order was clearly issued pursuant to this section.

We conclude, however, that none of the other provisions on which the
State relied unambiguously require findings which satisfy the judicial
determination requirement.  The State argued that sections 48-2A-1 and
49-1-1, the "Purpose" sections of the Domestic Relations Law and the
Child Welfare Law, respectively, require reasonable efforts and contrary
to the welfare findings.  These sections contain a general statement of
legislative purpose and do not specifically require a court to make the
requisite findings in the context of any specific proceeding, however.

In addition, the State relied on section 49-6-2(c), which applies to
abuse and neglect proceedings generally, and states in pertinent part
that "[w]here relevant, the court shall consider the efforts of the
state department to remedy the alleged circumstances."  However, this
language makes the consideration of such efforts discretionary on the
part of a court.  Even if a court must consider preventive efforts under
this section, there is nothing which requires the court to find, before
ordering the child's removal from the home, that such efforts have been
made or that such efforts were not possible due to an emergency
situation.

The State also relied on section 49-5-13(b), which requires a court to
"give precedence to the least restrictive of the following alternatives"
in placing a delinquent child, and lists alternatives including (1)
referring "the child and the child's parent or custodian to a community
agency for needed assistance . . . " and (2) prescribing a program of
treatment or therapy.  While this arguably requires the court to
consider the option of providing services to prevent the child's removal
from the home, it does not satisfy the reasonable efforts requirement
since it does not require a determination by the court that services
have already been provided or could not be provided due to an emergency
situation.

We discuss our conclusion that various other provisions relied on by the
State are ambiguous later in the context of the individual cases.

Nunc pro tunc orders

As discussed above, ACYF has a policy of accepting nunc pro tunc (NPT)
orders only if they are in fact intended to correct a mistake in the
original court order, i.e., the failure to reflect a judicial
determination actually made at the time of entry of the original order.
This policy is based on ACYF's view that the statute requires that the
determination be made at the time of removal in order to protect the
child.  The State did not directly contest this policy, but argued that
ACYF was not reasonable in requiring that the State support its NPT
orders with contemporaneous documentation showing that the finding was
made at the time of the original order.  According to the State, West
Virginia law permits issuance of a NPT order only to correct a mistake
in an original order, and ACYF should assume that the judges issuing the
NPT orders would follow this law.

ACYF argued that there was no reasonable basis for assuming that the NPT
orders here reflected findings made at the time of the original removal
orders.  ACYF pointed out that all of the NPT orders submitted by the
State were issued in 1988, after ACYF had performed its review.  ACYF
also pointed out that the motions for the NPT orders which were
submitted by the State did not indicate that the NPT orders were needed
to correct mistakes made previously.  In discussing individual cases,
ACYF also pointed out that the underlying contemporaneous documentation
did not indicate that any evidence relevant to a reasonable efforts or
contrary to the welfare determination was presented to the court at the
time of the original order.

The State replied that by examining the underlying documentation, ACYF
was impermissibly substituting its judgment for that of the court.  In
addition, the State cited the Board's decision in Idaho Dept. of Health
and Human Welfare, DAB No. 1011 (1989), in support of the State's
position that it should not be penalized with loss of FFP based on
inadequate contemporaneous documentation.

We find that it is not reasonable under the circumstances here to accept
the NPT orders on their face as showing that the requisite findings were
made at the time of removal and simply mistakenly omitted from the
original orders.  Under the Act, title IV-E benefits are available only
for a child removed from the home as a result of a judicial
determination that continued residence in the home would be contrary to
the welfare of the child, and, for children removed beginning October 1,
1983, that reasonable efforts to prevent the child's removal have been
made.  Thus, these judicial determinations must have been made at the
time of the child's removal.  The original court order, issued at the
time of the child's removal, will obviously be the most persuasive
evidence about whether a determination was made at that time.  In those
instances where the original order does not refer to the necessary
determinations, a question would reasonably be raised as to whether the
requisite judicial determinations were in fact made.  Ordinarily, any
material finding made by a court would be reflected in the court's order
issued at the time.  Indeed, the State had a financial incentive here to
inform its judges that unless they made the determinations required by
section 472 and reflected them in their orders, federal funding would be
in jeopardy.  Thus, a NPT order is acceptable only if it is clearly
shown to have been issued to correct a mistake in the original order
rather than to add findings not previously made, even if those findings
could have been made based on the circumstances in a particular case.
See Nebraska Dept. of Social Services, DAB No. 1250 (1991), pp. 8-9.  We
cannot accept the NPT orders submitted here, without evidence to
corroborate that the findings were made at the time of the original
order, for the following reasons:

 o  The NPT orders here were not issued on any court's own
 motion, nor were any of them issued in response to a question
 about the original order raised, at the time it was issued, by
 someone participating in the judicial proceeding.  Rather, they
 were obviously a response to the threat of disallowance, issued
 after a significant lapse of time at the request of the State.

 o  In many cases, the NPT orders were not issued by the same
 judge who issued the original order.  Thus, even if evidence
 which might have supported a reasonable efforts or contrary to
 the welfare determination was before the court at the time the
 original order was issued, a different judge could not be
 certain that the judge who issued the original order actually
 made such a determination.

 o  The motions for the NPT orders do not specifically ask the
 courts to find that a mistake was made in the original orders.
 Rather, they can be interpreted as asking the courts to make
 determinations on the basis of the allegations made in the
 motions.  Some of the motions for NPT orders cite facts which
 could not have been before the court at the time of the original
 order since they relate to events occurring later.  (See, e.g.,
 sample case #82, where the motion for the NPT order gave as one
 reason for the issuance of such an order that the child in
 question had been diagnosed as "failure to thrive," a diagnosis
 which was made after the issuance of the original order.  State
 Ex. II-82, 5th and 7th pages.) 10/

 o  Chaney v. State Compensation Commissioner, 33 S.E. 2d 284,
 (W. Va. 1945), cited by both parties, states that NPT orders can
 be issued in two kinds of cases:  "[F]irst, where no judgment
 was actually rendered, although one might or ought to have been;
 second, where a judgment was actually rendered, but never
 entered or put upon the records."  Id., at 286 (citations
 omitted).  Thus, the NPT orders here did not necessarily reflect
 a judicial determination which had already been made, as
 required by section 472(a)(1) of the Act.

 o  Chaney also states that the second type of NPT order can be
 lawfully entered only "upon a showing of some entry or
 memorandum upon the records or quasi records of the court as
 evidencing its prior action . . . ."  Id.  If this case law were
 followed, the State should be able to produce such an entry or
 memorandum evidencing action at the time of the original order.
 11/

Thus, in requiring contemporaneous evidence that the court actually made
findings at the time of the original order, ACYF is not improperly
substituting its judgment for that of the court on what would constitute
reasonable efforts or whether continuation in the home was contrary to
the child's welfare, but is simply requiring evidence that the NPT order
was in fact issued to correct a mistake in the original order in failing
to reflect a determination actually made at the time. 12/

This conclusion is not inconsistent with the Board's decision in Idaho,
supra.  One issue there was whether Idaho had provided adequate evidence
that periodic case reviews or dispositional hearings required by section
427 of the Act were held.  In the case of each of the four children in
question, Idaho furnished affidavits prepared for purposes of the appeal
as well as some contemporaneous documents.  The Board found that in each
case, "the written, contemporaneous record contains some information
about a proceeding which was scheduled or held and the affidavits merely
provide clarification of the scope or nature of the proceeding or who
participated."  Idaho, supra, p. 6.  It was in this context that the
Board made the statement, relied on by the State here, that "[g]iven . .
. the fact that a State does not have total control over how its workers
and the courts record and preserve evidence of what they do, it does not
appear warranted for ACYF to fail every case where the contemporaneous
documentation is not complete."  Id.  Thus, there is nothing in that
decision which supports the State's view that we should accept the NPT
orders on their face.

The foregoing analysis applies to the sample cases discussed below.
Thus, in addressing the State's argument in those cases that the NPT
orders satisfied the judicial determination requirement, we discuss only
whether the contemporaneous documentation submitted, if any, was
sufficient to establish that this requirement was met.

Individual Sample Cases

Below, we consider the individual sample cases.  The first case
discussed, sample case #25, was part of the Stage I sample and was not
included in the cases for which the payments were extrapolated to obtain
the disallowance amount.  As previously noted, we conclude that ACYF
correctly found sample case #25 ineligible and therefore reject the
State's argument that the results of the Stage II sample should be
ignored.  The remaining sample cases were included in the Stage II
sample.  We uphold the disallowance pertaining to the majority of sample
cases, which we conclude were ineligible, and reverse the disallowance
with respect to the few sample cases (#46, #91 and #180) which we
conclude were eligible, as well as sample case #222, which ACYF accepted
as eligible.

Sample Case #25

This case relates to a payment for care received by a child placed in
the State's temporary custody pursuant to a court order dated 11/23/83.
13/  The order stated that "it was announced to the court" that the
child admitted to being a juvenile delinquent for the acts set forth in
the petitions, and that the child, his mother and his counsel "believe
it to be in the best interest of the juvenile if the prior order" of the
court "were amended and modified to provide for custody of the infant to
be placed in the West Virginia Department of Human Services for
placement in a foster home."  The order further stated that the court
"finds that there is clear and convincing proof that there has been a
substantial violation of the terms of probation and that the infant's
best interest would be served by a change of the prior order of this
court."  The court therefore ordered that custody of the child "be
removed from his mother and placed with the West Virginia Department of
Human Services for placement in a foster home."  State Ex. II-25, 1st
and 2nd pages.  The record shows that the child had been placed on
probation in 1982 for destruction of property and that the petitions
referred to in the 11/23/83 order asked for modification of the court's
1982 order on the basis that the child had violated the terms of the
probation.  State Ex. II-25, 19th, 22nd, and 25th pages.  ACYF found
that the child was ineligible for title IV-E payments because the
11/23/83 order did not contain a reasonable efforts determination.

The State argued that 1) the "best interest" finding in the 11/23/83
order satisfied the reasonable efforts requirement under ACYF's own
interpretation in its review guide; 2) the 11/23/83 order was based on
section 49-5-13 of the Child Welfare Law, which required findings which
satisfied the reasonable efforts requirement; and 3) the NPT order
issued 6/16/88 stated that reasonable efforts to prevent the child's
removal from the home were not possible, and thus corrected the omission
of a reasonable efforts determination from the 11/23/83 order.  We
reject all three arguments.

As discussed previously, there is no basis for the State's
interpretation of ACYF's review guide as permitting a "best interest"
finding to satisfy the reasonable efforts requirement.  Instead, the
court order must indicate that the court determined that preventive
services had been provided or, alternatively, that removal from the home
was due to an emergency situation where preventive efforts were not
possible, as stated in the NPT order here.  Here, there was no reference
to preventive efforts in the 11/23/83 order and removal from the home
was with the consent of the mother.  There is no evidence that an
emergency situation existed so that removal was necessary to protect the
child.

Although the State relied on section 49-5-13 of West Virginia's Child
Welfare Law in arguing that findings which satisfied the reasonable
efforts requirement were made by the court, the 11/23/83 order does not
cite any provisions of the Child Welfare Law.  The order refers to the
child's "best interests," a term used in section 49-5-13; however, this
is not sufficient to indicate that the court was applying that section
in view of other language in the order regarding "clear and convincing
proof."  This indicates that the court may instead have been applying
section 49-5-14, which permits a court to modify an order to provide for
a more restrictive alternative "if it finds clear and convincing proof
of substantial violation" of a prior court order.  Even if the court was
applying section 49-5-13, this section does not require findings which
satisfy the reasonable efforts requirement for the reasons previously
discussed.  Moreover, it is arguable that, in a situation such as that
here, where the child and his mother agreed to placement with the State,
the court need not have specifically rejected the alternative of
providing services to prevent removal.  Thus, we conclude that the
11/23/83 order did not satisfy the reasonable efforts requirement by
relying on State law.

In addition, we find the NPT order insufficient to show that the court
made a reasonable efforts determination at the time of the removal.  The
only contemporaneous documentation in the record is a probation
officer's report prepared about a year after the 1981 incident, before
any violation of probation.  State Ex. II-25, 25th - 27th pages.  Even
if this report was considered by the court when it issued the 11/23/83
order, the report does not refer to any reason why services could not
have been provided to prevent the child's removal from the home, as
stated in the NPT order. 14/

Sample Cases #12 and #19

Sample case #12 relates to a $100 payment for care received 1/31/85 by a
child placed in the State's temporary custody pursuant to a court order
dated 12/18/84.  Sample case #19 relates to a $144 payment made for care
received 5/1/85 by the same child.  The 12/18/84 order noted that a
"Petition will be filed alleging [the child and her sisters] to be
neglected" and "the Court finds that immediate temporary custody of the
said children should be granted to the West Virginia Department of Human
Services pending a hearing upon the petition . . . ."  State Ex. II-12,
1st page.  The petition on which the order was based stated that the
children's "physical & mental condition is in danger by the present
failure or inability of the mother to provide proper environment" for
them, noting allegations by the children that the mother left them alone
at night, administered excessive corporal punishment, furnished them
with marijuana and committed sexual acts in their presence.  State Ex.
II-12, 8th page.  ACYF found that the child was ineligible for title
IV-E payments because the 12/18/84 order did not contain a reasonable
efforts determination.

The State argued that 1) the 12/18/84 order was based on section
49-6-3(a) of the Child Welfare Law, which required findings which
satisfied the reasonable efforts requirement; and 2) the NPT order
issued 9/2/88 stated that reasonable efforts were made to prevent the
child's removal from the home, and thus corrected the omission of a
reasonable efforts determination from the 12/18/84 order.  We reject
both arguments.

As previously discussed, section 49-6-3(a) requires a court to make a
reasonable efforts determination before ordering the State to take
temporary custody of an abused or neglected child.  However, the
12/18/84 order does not cite any provisions of the Child Welfare Law.
The State nevertheless argued that the 12/18/84 order was based on
section 49-6-3(a) since the order referred to "temporary custody."  We
disagree.  While section 49-6-3 is captioned "Temporary Custody," there
are other provisions of the Child Welfare Law which also use this term.
Moreover, while section 49-6-3(a) applies "[u]pon the filing of a
petition," the 12/18/84 order states that a petition "will be filed."
In addition, section 49-6-3(a) requires that the order granting custody
also appoint counsel and schedule a preliminary hearing.  The fact that
the 12/18/84 order did not do this raises a further question concerning
whether the court was applying this provision.

We also find the NPT order insufficient to show that the court made a
reasonable efforts determination at the time of the removal.  The only
contemporaneous documentation in the record is the social worker's notes
of her testimony before the judge on 12/17/84 (at State Ex. IV-12, p.
4).  However, there is no indication in the notes that the social worker
testified that preventive services were provided or that the court found
they had been (as stated in the NPT order).  Thus, there is no evidence
that the court made a reasonable efforts determination.

Sample Cases #13 and #17

Sample case #13 relates to a $127 payment for care received in 2/85 by a
child placed in the State's temporary custody pursuant to a court order
dated 8/23/84.  Sample case #17 relates to a payment in the same amount
for a sibling who was the subject of the same order.  The order stated
that a petition had been filed alleging the children to be neglected and
that the petitioner had testified and the court "finds that immediate
temporary custody of said children should be granted" to the State
pending a hearing on the petition.  State Ex. II-13.  The petition to
which the order referred stated that the children's mother had been
incarcerated the day before on preliminary charges, that the father's
whereabouts were unknown, and that the mother had been the subject of
numerous child protective referrals but had left the jurisdiction before
services could be provided.  State Ex. II-13, 8th page.  The children
had stayed one night with their grandfather, who indicated that he could
not keep them on a long-term basis since his wife was ill.  State Ex.
IV-13, 8th page.  ACYF found that the children were ineligible for title
IV-E payments because the 8/23/84 order did not contain a reasonable
efforts determination.

The State argued that 1) the 8/23/84 order was based on section
49-6-3(a) of the Child Welfare Law, which required findings which
satisfied the reasonable efforts requirement; and 2) the NPT order
issued 9/2/88 stated that reasonable efforts to prevent the children's
removal from the home were made, and thus corrected the omission of a
reasonable efforts determination from the 8/23/84 order.  We reject both
arguments.

The 8/23/84 order does not contain a citation to any provisions of the
Child Welfare Law.  The State nevertheless argued that this order was
based on section 49-6-3(a) since the order refers to "temporary
custody."  However, as noted above, other provisions of the Child
Welfare Law also refer to temporary custody.  Moreover, the 8/23/84
order did not appoint counsel and schedule a hearing within 10 days as
required by section 49-6-3(a).  This raises a further question as to
whether the court was invoking that section. 15/

We also find the NPT order insufficient to show that the court made a
reasonable efforts determination at the time of the removal.  The only
contemporaneous documentation in the record is the petition for the
8/23/84 order.  While the order referred to the petition, the court did
not adopt as findings the facts alleged in the petition.  Thus, even if
the court would have made a reasonable efforts determination based on
those facts, we cannot conclude that such a determination was made here.

Sample Case #30

This case relates to a $144 payment for care received in 10/84 by a
child placed in the State's custody pursuant to a court order dated
5/15/84.  The order granted a motion for a one-year improvement period
for the child "pursuant to [section] 49-5-9(b)" of the Child Welfare
Law, which provides that, after probable cause has been found that a
child is delinquent, the court may delay an adjudicatory hearing and
allow an improvement period.  In addition, the order stated an "opinion
that the parents of the said child cannot provide the necessary
supervision and care of the child and that the best interest and welfare
of the child and of the State of West Virginia will be served by
committing him to the custody of the West Virginia Department of Human
Services."  The order thus granted temporary custody of the child to the
Department of Human Services for a six-month period.  State Ex. II-30.
The record indicates that several weeks prior to the 5/15/84 order, the
child was arraigned on a charge of breaking and entering.  State Ex.
II-30, 6th page.  ACYF found that the child was ineligible for title
IV-E payments on the ground that the 5/15/84 order did not include a
reasonable efforts determination.

The State argued that 1) the reference to the child's "best interest" in
the 5/15/84 order satisfied the "reasonable efforts" requirement; 2) the
5/15/84 order was based on section 49-5-13(b)(4) of the Child Welfare
Law, which required findings which satisfied the reasonable efforts
requirement; and 3) the NPT order issued 7/19/88 stated that efforts to
prevent the child's removal from the home were not possible under the
circumstances, and thus corrected the omission of a reasonable efforts
determination from the 5/15/84 order.  We reject all three arguments.

As discussed earlier, the State's reliance on its interpretation of
ACYF's review guide is misplaced.  The "best interest" finding cannot
satisfy the reasonable efforts requirement here since the order does not
indicate that the court determined that reasonable efforts to prevent
the child's removal were not possible (as stated in the NPT order) due
to an emergency situation.

There is also no basis for the State's position that the 5/15/84 order
complied with the reasonable efforts requirement because it was issued
pursuant to section 49-5-13(b)(4) of the Child Welfare Law.  The order
itself cites section 49-5-9(b) of the Child Welfare Law.  The State
nevertheless relied on the fact that the language of the order was
similar to that of section 49-5-13(b)(4), which states in part that
"[u]pon a finding that a parent or custodian . . . cannot provide the
necessary supervision and care of the child, the court may . . .
temporarily commit the child to the state department of a child welfare
agency. . . ."  However, as indicated previously, section 49-5-13 does
not require a determination that the lack of efforts to prevent the
child's removal from the home was due to an emergency situation, as
required by section 472(a)(1) of the Act.  Thus, even if the court was
following section 49-5-13(b)(4), this would not avail the State.

Finally, we find the NPT order insufficient to show that the court made
a reasonable efforts determination at the time of the removal.  The
record does not contain any contemporaneous documentation which might
show that such a determination was made.

Sample Case #46

This case relates to a $161 payment for care received in 6/85 by a child
placed in the State's temporary custody pursuant to a court order dated
1/22/85.  The order stated that, based on a petition filed with the
court, there was "probable cause to believe that the child was an abused
child and that there are no reasonably available alternatives to placing
custody of the child" with the State.  State Ex. II-46, 1st page.  The
court therefore ordered that temporary custody be awarded to the State
until the date set by the order for a hearing on the petition.  The
court also appointed counsel for the child.  State Ex. II-46, 1st page.
The petition on which the 1/22/85 order was based alleged that the State
agency had received complaints concerning abuse of the child by both the
child's mother and father, and that the child was "in imminent danger in
the home because of the unexplained death of her brother," who was found
dead in his mother's custody on the day preceding the order.  State Ex.
IV-46, 5th page.  ACYF found that the child was ineligible for title
IV-E payments because the 1/22/85 order did not contain a reasonable
efforts determination.

The State argued that 1) the language of the 1/22/85 order showed that a
reasonable efforts determination had been made; 2) the 1/22/85 order was
based on section 49-6-3 of the Child Welfare Law, which required
findings which satisfied the reasonable efforts requirement; and 3) a
NPT order dated 8/2/88 stated that efforts to prevent the child's
removal from the home were not possible under the circumstances, and
thus corrected the omission of a reasonable efforts determination from
the 1/22/85 order.  We conclude that the reasonable efforts requirement
was met because the court acted pursuant to section 49-6-3 of the Child
Welfare Law.  In view of this conclusion, we need not address the
State's other arguments.

Although the 1/22/85 order does not cite section 49-6-3, the language of
the order closely follows the language of section 49-6-3(a), including
references to an "abused child" and to the lack of "reasonably available
alternatives" to State custody.  Moreover, as required by section
49-6-3(a), the order sets a date for a hearing within 10 days and
appoints counsel to represent the child.   Thus, we conclude that the
court was acting pursuant to this section.  Since this section requires
a reasonable efforts determination in order to place the child in the
State's custody (see prior discussion), the court order complied with
the requirement for such a determination.

Sample Case #72

This case relates to a $1,460 payment for care received in 4/85 by a
child placed in the State's temporary custody pursuant to a court order
dated 9/21/84.  The order stated that the court had been informed at a
hearing in the case that all parties, including the child and her
mother, had agreed that the appropriate action would be to grant
temporary custody of the child to the State agency.  State Ex. II-72,
1st page.  The petition which gave rise to the order was filed by the
State agency and stated that the child's mother believed that the child
was "incorrigible beyond control and fails to respond to her lawful
supervision; that because of such allegations, the mother of said child
refuses to provide necessary shelter and therefore the said child is in
need of the appointment of a guardian."  State Ex. II-72, 12th page.
ACYF found that the child was ineligible for title IV-E payments because
the 9/21/84 order did not contain a reasonable efforts determination.

The State argued that 1) the 9/21/84 order was based on the abuse and
neglect provisions of the Child Welfare Law, which required findings
which satisfied the reasonable efforts requirement; and 2) the NPT order
issued 9/2/88 stated that reasonable efforts to prevent the child's
removal from the home were not possible under the circumstances, and
thus corrected the omission of a reasonable efforts determination from
the 9/21/84 court order.  We reject both arguments.

There is no express mention in the 9/21/84 order of any provisions of
the Child Welfare Law.  The State noted, however, that the petition for
the order as well as the hearing notices issued by the court clerk prior
to issuance of the order referred to sections of the Child Welfare Law.
The petition referred to sections 49-6-3 and 49-6-5 while the notices
referred to section 49-6-1.  It is nevertheless unclear whether the
court was acting pursuant to any of these provisions since they pertain
to abused or neglected children while the order identifies the case as a
"Delinquency/Neglect" case.  Moreover, even if the court was acting
pursuant to the abuse and neglect provisions, it is not clear that a
reasonable efforts determination was made.  Section 49-6-5(a)(4), which
may have been applicable given the facts here, permits the court to
"commit the child temporarily to the custody of the state department" if
the court finds "that the abusing parent or parents are presently
unwilling or unable to provide adequately for the child's needs. . . ."
Where, as here, the parent wished to relinquish custody of the child, it
is arguable that the court might not have thought it necessary to
address whether reasonable efforts to prevent the child's removal from
the home were possible.  Thus, we cannot conclude that a reasonable
efforts determination was made because the court relied on State law.

We further find the NPT order insufficient to show that the court made a
reasonable efforts determination at the time of the removal.  The only
contemporaneous documentation in the record is the petition for the
9/21/84 order.  That order does not even refer to the petition, however,
so that even if the court would have made a reasonable efforts
determination based on the facts alleged in the petition, there is
insufficient evidence that such a determination was made.

Sample Cases #80 and #86

Sample case #80 relates to a $227 payment for care received in 2/85 by a
child placed in the State's temporary custody pursuant to a court order
dated 4/29/80.  Sample case #86 relates to a $227 payment for care
received in 8/85 by the same child.  The order granted a divorce to the
child's parents and gave temporary custody of the child to the State
agency until the completion of an investigation of the home and home
conditions of the mother, father, and grandmother, at which time the
question of the child's custody was to be determined.  The order stated
that, until that time, the child and her sibling were "either to be left
in the home of the defendant [their mother] . . . [or] of said
children's grandmother. . . ."  State Ex. II-80, 1st and 2nd pages.
ACYF found that the child was ineligible for title IV-E payments because
the 4/29/80 order did not contain a contrary to the welfare
determination.

The State argued that a NPT order dated 6/30/88 which stated that
continuation in the home is contrary to the welfare of the child
corrected the omission of this determination from the 4/29/80 order.  We
reject this argument on the ground that the 4/29/80 order does not
require the child to be removed from her home.  Instead, the order gives
the State agency the choice of placing the child in either the mother's
or the grandmother's care.  It appears that the child was already in the
mother's home, since the motion for the NPT order states that the mother
failed to answer an amended complaint seeking to deprive her of custody
of the children.  State Ex. II-80, 5th page.  Since the order did not
require the child to be removed from her home, the court clearly did not
make a determination that continuation in the home was contrary to the
welfare of the child.  Thus, even if the child was in fact removed from
her home, she was not eligible for title IV-E payments.

Sample Cases #82, #83 and #84

Sample case #82 relates to a payment for care received in 6/85 by a
child placed in the State's temporary custody pursuant to a court order
dated 6/9/84. 16/   Sample case #84 relates to a $127 payment for care
received in 7/85 by the same child.  Sample case #83 relates to a $127
payment for care received in 6/85 by the sibling of the child in case
#82, who was placed in the State's custody by the same order.  The order
stated that "upon a personal examination of the children," the
magistrate "is of the opinion that children are of eminent [sic]
physical harm and that they have been abused."  The court therefore
ordered the State agency to "take custody of the children until Monday,
June 11, 1984, when they shall appear before the Judge of the Circuit
Court."  State Ex. II-82, 1st page.  A petition dated 6/9/84 stated that
the older child, a two-year-old, had been beaten recently by the
boyfriend with whom the mother and children were living and the younger
child, a two-month-old, had not been fed any milk for a day.  The
petition requested that the children be placed in the court's custody
pending a hearing to determine whether the children were neglected or
abused children.  State Ex. II-82, 15th and 16th pages.  This petition
was likely filed after the issuance of the magistrate's order and was
the basis for the issuance of an order on 6/11/84 continuing the State's
custody.  See State Ex. II-82, 12th page.  The record also indicates
that the State agency took "emergency custody" of the children the day
before the 6/9/84 order was issued.  State Ex. II-82, 7th page.  ACYF
found that the children were ineligible for title IV-E payments because
the 6/9/84 order did not contain a reasonable efforts determination.

The State argued that 1) the language of the 6/9/84 order indicated that
the court made a reasonable efforts determination; 2) the 6/9/84 order
was based on the abuse and neglect provisions of the Child Welfare Law,
which required findings which satisfied the reasonable efforts
requirement; 3) a NPT order issued 9/21/88 stated that reasonable
efforts were made to prevent the children's removal from their home, and
thus corrected the omission of a reasonable efforts determination from
the 6/9/84 order; and 4) court orders subsequent to the 6/9/84 order
indicated that reasonable efforts had been made to reunite the family
and should have been treated as satisfying the reasonable efforts
requirement under ACYF's own policy.  We reject all four arguments.

We see nothing in the language of the 6/9/84 order which constitutes a
reasonable efforts determination.  There is no reference to the
provision of any services to prevent the removal of the children from
their home.  The State argued that a reasonable efforts determination
had been made since the magistrate who issued the original order based
his opinion that the children were abused and in imminent danger of
physical harm "upon a personal examination of the children. . . ."
However, there is no evidence concerning the magistrate's specific
findings based on this examination.

The 6/9/84 order does not cite any provisions of the Child Welfare Law.
The State nevertheless argued that the order must have been issued
pursuant to the abuse and neglect provisions because it used the words
"physical harm" and "abused" and because the petition referred to in the
order cited the definition in the Child Welfare Law of an abused or
neglected child.  Given the facts of the case, it appears that the order
may have been issued pursuant to section 49-6-3(c).  That section
authorizes a magistrate to ratify the "emergency custody" taken by a
child protective service worker who finds the child "in an emergency
situation which constitutes an imminent danger to the physical
well-being of the child . . . and . . . had probable cause to believe
that the child . . . will suffer additional child abuse or neglect . . .
before a petition can be filed and temporary custody can be ordered. . .
."  Upon the magistrate's order, emergency custody is vested in the
State agency until the end of the next judicial day unless a petition is
filed.  However, it is unclear how the court's reliance on this section
would support the statement in the NPT order that reasonable efforts
were made since the section applies to removal in an emergency situation
(although the section does not expressly require that the magistrate
himself make the finding made by the child protective services worker in
order to ratify the emergency custody).  Thus, we cannot conclude that a
reasonable efforts determination was made even if the court was
following this provision.

We also find the NPT order insufficient to show that the court made a
reasonable efforts determination at the time of the removal. 17/  The
only contemporaneous documentation in the record is the petition dated
6/9/84.  This petition asked that the State be given temporary custody
of the child pending a determination about whether "the conditions [in
the home] can be corrected. . . ."  State's Ex. II-82, 14th page.  Thus,
it is unlikely that the court found that reasonable efforts had already
been made to prevent the child's removal, as stated in the NPT order.

We further conclude that subsequent court orders did not satisfy the
requirement for a reasonable efforts determination.  The State referred
to orders dated 7/17/84 and 8/15/84; however, it appears that the first
order was issued 7/18/84.  This order indicates that, after a hearing,
the parties had met and agreed upon an improvement plan, while the
second order, issued after a hearing on the progress of the case,
approves the improvement plan.  The ACYF guidelines on which the State
relied stated in pertinent part that --

 subsequent court orders (but no later than the month being
 reviewed) should be investigated to determine whether there has
 been a judicial determination to the effect that reasonable
 efforts had been made to reunite the child with his family.  If
 there is such a determination, the child becomes eligible for
 FFP from the beginning of the month in which that determination
 is made.

ACYF-IM-85-25, supra, Attachment A, p. 3 (emphasis in the original).
ACYF took the position that this policy was inapplicable here because
the payments were made before the orders were issued.  The record
indicates that the orders were issued approximately a year before the
claims in question were filed. 18/  See State Ex. II-82, 13th page. 19/
However, while the improvement plan may have anticipated that services
would be provided to help reunite the family, ACYF policy requires that
subsequent court orders find that reasonable efforts to reunite the
family had already been made.  Thus, there is no basis for concluding
that the court made a reasonable efforts determination when it issued
either of the orders relied on by the State.

Sample Case #87

This case relates to a $1,460 payment for care received in 12/84 by a
child placed in the State's custody pursuant to a court order entered
10/14/83.  The order found that "the least restrictive alternative
consistent with the rehabilitative interests of the infant respondent
and the interests of society" was commitment of the child "to the
custody of the Department of Human Services for assignment to the Sugar
Creek Children's Home."  The order indicated that this finding was made
"pursuant to" the child's unopposed motion that the court find that this
facility was "the least restrictive dispositional alternative herein."
State Ex. III-87, 1st and 2nd pages.  The record shows that on 8/8/83,
the child had been adjudged a delinquent child based on his plea of
guilty to a charge of grand larceny.  He had previously been placed on
probation based on charges of breaking and entering.  State's Ex.
III-87, 7th and 9th pages.  ACYF found that the child was ineligible for
title IV-E payments because the 10/14/83 order did not contain a
reasonable efforts determination.

The State argued that 1) the language of the 10/14/83 order  indicated
that the court made a reasonable efforts determination; 2) the 10/14/83
order was based on section 49-5-13(b)(5) of the Child Welfare Law, which
required findings which satisfied the reasonable efforts requirement;
and 3) a NPT order dated 9/29/88 stated that reasonable efforts were
made to prevent the child's removal from the home, and thus corrected
the omission of a reasonable efforts determination from the 10/14/83
order.  We reject all three arguments.

We see nothing in the language of the 10/14/83 order which indicates
that a reasonable efforts determination was made.  There is no reference
to the provision of services to prevent the child's removal from the
home.  The State argued that it was implicit in the order that the less
restrictive alternative of keeping the child in the home "was not
appropriate or in the best interests of the child."  State's brief dated
1/2/91, p. 33.  This appears to be a reference to ACYF's review guide,
which the State argued permitted a "best interests" finding to satisfy
the requirement for a reasonable efforts determination.  However, as
previously indicated, there is no basis for this argument, and in any
event, the order itself does not use any "best interests" language.

In addition, we find no merit in the State's argument that a reasonable
efforts determination was made because the court acted pursuant to
section 49-5-13(b)(5) of the Child Welfare Law.  This section authorizes
the court, "[u]pon a finding that no less restrictive alternative would
accomplish the requisite rehabilitation of the child, and upon an
adjudication of delinquency . . . [to] commit the child to an industrial
home or correctional institution for children."  The State noted that
the 10/14/83 order used similar language, referring to "the least
restrictive dispositional alternative. . . ."  However, as discussed
previously, this section does not unambiguously require findings which
satisfy the reasonable efforts requirement.  Moreover, the court's
finding that commitment of the child was the least restrictive
alternative was made pursuant to the child's motion to that effect,
which the mother did not oppose.  Under these circumstances, the court
did not necessarily have to consider other dispositional alternatives,
including the provision of preventive services. 20/

Finally, we find the NPT order insufficient to show that the court made
a reasonable efforts determination at the time of the  removal.  The
only contemporaneous documentation in the record is the counselor's
report requested by the court when it found the child to be a delinquent
child.  This report, which recommended against commitment to a
correctional institution, did not indicate that any services had been
provided to prevent removal, as stated in the NPT order.  State Ex.
III-87, last three pages.  Sample Cases #89 and #90

Sample case #89 relates to a $207 payment for care received in 2/85 by a
child placed in the State's temporary custody pursuant to a court order
dated 1/25/74.  Sample case #90 relates to a $207 payment for care
received in 3/85 by the same child.  The 1/25/74 order stated that a
social worker and prosecutor had appeared and asked leave to file a
petition "setting forth the fact that . . . [the child and her siblings]
are neglected children for the reasons set out in said petition. . . ."
State's Ex. IV-89.   The order further ordered "[u]pon consideration
thereof" that the children were to be placed in the temporary custody of
the State agency pending a hearing.  The petition referred to alleged
that all of the children were in need of medical attention, that the
children were allowed to go barefoot and poorly dressed in very cold
weather, that the parents were separated, that the mother was ill and
not capable of taking care of the children at present, and stated "the
opinion that if said infants are allowed to remain at the residence
under the present circumstances, it will be injurious to their health
and welfare."  State Ex. III-89, 5th and 6th pages.  ACYF found that the
children were ineligible for title IV-E payments because the 1/25/74
order did not contain a contrary to the welfare determination.

The State argued that a NPT order issued 6/14/88 which stated that
continuation in the home is contrary to the welfare of the child
corrected the omission of a contrary to the welfare determination from
the 1/25/74 order.

We disagree.  There is nothing on the face of the NPT order which
indicates that it was issued to correct a mistake.  The only
contemporaneous documentation in the record is the petition which gave
rise to the 1/25/74 order.  While this petition stated an "opinion" that
it would be "injurious to the children's health and welfare" if they
were permitted to remain at home, there is no basis for concluding that
the court adopted this opinion in issuing the 1/25/74 order since the
order indicates at most that the court considered the reasons set forth
in the petition for finding that the children were neglected children
and ordered temporary custody.  The petitioner's opinion that it would
be contrary to the children's welfare to remain in the home is not a
part of the reasons given in the petition for a finding of neglect, nor
was it otherwise expressly adopted by the court or made a basis for the
court's order.  Accordingly, we reject the State's contention that a
contrary to the welfare finding was made by the court when it issued the
1/25/74 order.

Sample Case #91

This case relates to a $322 payment for care received on 5/1/85 by a
child placed in the State's custody pursuant to a court order dated
10/17/83.  The order stated that --

 the Court finds there is good reason to believe that . . . [the
 child] is an abused and neglected child.  It appearing to the
 Court that there exists eminent [sic] danger to the physical and
 emotional well-being of said infant child . . . , and that there
 is no reasonable, available alternative to removal of said
 child, the Court ORDERS the immediate transfer of the custody of
 . . . [the child] to the West Virginia Department of Human
 Services, for appropriate placement pending hearings in this
 matter.

State Ex. III-91, 2nd page.  The record indicates that a petition was
filed by the State agency alleging that the child had been sexually
abused or assaulted by her father.  State Ex. IV-91, 1st page.  ACYF
found that the child was ineligible for title IV-E payments because the
court order did not contain a reasonable efforts determination.

The State argued that 1) the language of the 10/17/83 order indicated
that the court made a reasonable efforts determination; 2) the 10/17/83
order was based on section 49-6-3(a) of the Child Welfare Law, which
required findings which satisfied the reasonable efforts requirement;
and 3) a NPT order dated 6/22/88 stated that reasonable efforts to
prevent placement were not possible under the circumstances, and thus
corrected the omission of a reasonable efforts determination from the
10/17/83 order.  We conclude that a reasonable efforts determination was
made because the court acted pursuant to section 49-6-3(a).  In view of
this conclusion, we need not address the State's other arguments.

The State took the position that the court was following section
49-6-3(a) because the language of the 10/17/83 order was similar to the
language in that section.  We agree that the reference in the order to
the "eminent [sic] danger to the physical . . . well-being of the . . .
child" as well as to the lack of "reasonable, available alternatives" is
evidence that the court was following section 49-6-3(a).  In addition,
while the order does not set a date for a hearing on the case as
required by section 49-6-3(a), it does indicate that custody was given
to the State agency "pending hearings in this matter," and it appoints
an attorney to represent the child in the matter in accordance with
section 49-6-3(a).  We therefore conclude that the order was issued
pursuant to section 49-6-3(a), which, as previously discussed, requires
a reasonable efforts determination.  Thus, the requirement for a
reasonable efforts determination was satisfied here.

Sample Case #103

This case relates to a $1,316.43 payment for care received in 2/85 by a
child placed in the State's custody pursuant to a court order dated
1/26/84.  The order stated that the court "does find probable cause to
believe that . . . [the child] is a delinquent and incorrigible child,"
as alleged in a petition filed by the child's father.  The court further
found that the child had been residing with her aunt and uncle for
several weeks and "that it would be in her best interest to remain there
until further action by this Court."  The court also stated "that . . .
[the child] is in need of supportive services which can only be provided
by the West Virginia Department of Human Services" and that "the Court
does hereby place emergency custody of respondent with the West Virginia
Department of Human Services and physical custody with her Aunt and
Uncle . . . until further action by this Court."  State Ex. III-103, 1st
and 2nd pages.  The record shows elsewhere that the child had run away
from home.  State Ex. III-103, last page.  ACYF found that the child was
ineligible for title IV-E payments because the 1/26/84 order did not
contain a reasonable efforts determination.

The State argued that 1) the language of the 1/26/84 order indicated
that the court made a reasonable efforts determination; 2) the 1/26/84
order was based on unspecified provisions of the Child Welfare Law
requiring findings which satisfied the reasonable efforts requirement;
and 3) a NPT order dated 6/23/88 stated that reasonable efforts to
prevent the child's removal from the home were not possible under the
circumstances, and thus corrected the omission of a reasonable efforts
determination from the 1/26/84 order.  We reject all three arguments.

We see nothing in the language of the 1/26/84 order which indicates that
the court made a reasonable efforts determination.  The State took the
position that the "best interest" language in the order satisfied the
reasonable efforts requirement under the ACYF's own guidance.  However,
as previously discussed, ACYF's review guide does not permit a "best
interests" finding to satisfy the reasonable efforts requirement in the
absence of any evidence that the court determined that reasonable
efforts were not possible (as stated in the NPT order here) due to an
emergency situation.  The State also argued that the court's finding
that the child was in need of supportive services which could only be
provided by the State agency indicated that the lack of efforts to
prevent the child's removal was reasonable.  However, there is no
apparent reason why such supportive services could not have been
provided without removing the child from her parents' custody.

We find no basis for concluding that the reasonable efforts requirement
was satisfied by virtue of the court's reliance on State law, moreover.
The 1/26/84 order refers to section 49-1-4, which defines the term
"delinquent child."  It also uses the term "probable cause," which
appears in section 49-5-9(a)(3).  This section provides that if probable
cause is found to believe that the child is delinquent, the case shall
proceed to adjudication.  Section 49-5-9(a)(4) authorizes the court to
"place the child in the temporary custody of the State" pending an
adjudicatory hearing.  However, it is not entirely clear that the court
was following section 49-5-9(a) since the 1/26/84 order refers to
"emergency" and not "temporary" custody.  Moreover, even if the court
intended to follow this section, it contains no language which could be
viewed as requiring a reasonable efforts determination since there is no
reference to the existence of an emergency situation which justified the
lack of reasonable efforts (which the NPT order stated were not possible
here).

We further find the NPT order insufficient to show that the court made a
reasonable efforts determination at the time of the removal.  The only
contemporaneous documentation in the record is the petition for the
1/26/84 order.  While that order appears to accept the allegations in
the petition, there is nothing in the petition which supports the
finding in the NPT order that the lack of preventive efforts was
reasonable since the petition does not refer to services or characterize
the child's home situation as an emergency one which would excuse the
lack of services.  See State Ex. III-103, 6th page.  Indeed, since the
child's father had petitioned to have legal custody placed with the
State, it is unlikely that the court considered prevention of removal as
an option.

Sample Cases #106 and #109

Sample case #106 relates to a $1,460 payment made for care received in
6/85 by a child placed in the State's custody pursuant to court order
dated 5/2/84.  Sample case #109 relates to another $1,460 payment for
care received in 8/85 by the same child.  The order stated that "the
Court finds that there is no less restrictive alternative other than
commitment which would accomplish the requisite rehabilitation of the
respondent child herein," who is shown elsewhere in the record to have
been charged with petit larceny.  State Ex. III-106, 1st page, 13th
page.  The order gave the child a suspended sentence, placed him on
probation for a period of six months, and ordered "that custody of the
respondent be given to the Department of Human Services for placement in
a group home. . . ."  State Ex. III-106, 2nd and 3rd pages.  The record
shows that the child, a teenager, lived in his grandmother's house with
his mother and two siblings, that the mother had emotional problems
(later diagnosed as paranoid schizophrenia) and that the grandmother was
in poor health.  State Ex. III-106, 14th, 15th and 17th pages.   ACYF
found that the child was ineligible for title IV-E payments because the
5/2/84 order did not contain a reasonable efforts determination.

The State argued that 1) the language of the 5/2/84 order indicated that
the court made a reasonable efforts determination; 2) the court order
was based on unspecified provisions of the Child Welfare Law requiring
findings which satisfied the reasonable efforts requirement; and 3) the
NPT order issued 9/15/88 stated that reasonable efforts were made to
prevent the child's removal from home, and thus corrected the omission
of a reasonable efforts determination from the 5/2/84 order.  We reject
all three arguments.

The State took the position that the use of the "less restrictive
alternative" language in the 5/2/84 order meant that the court
"implicitly found that keeping the child in his home, which would
obviously be a less restrictive alternative, 'was not appropriate or in
the best interests of the child,'" within the meaning of ACYF's review
guidelines.  State's brief dated 1/2/91, p. 34.  However, it appears
from the context in which the "less restrictive alternative" language is
used that it does not have the significance attributed to it by the
State.  While the court found that there was "no less restrictive
alternative other than commitment" to the State Department of
Corrections, the sentence of commitment was suspended, and the child was
given probation instead and placed in the custody of the State agency.
Thus, the court's determination that commitment was the least
restrictive alternative had no bearing on the child's removal from home.

Furthermore, we are not persuaded that the 5/2/84 order relied on any
provisions of the Child Welfare Law which satisfied the reasonable
efforts requirements.  The 5/2/84 order does not cite any statutory
authority.  While the 5/2/84 order refers to the absence of a "less
restrictive alternative," this was not a determination pursuant to
section 49-5-13 that placement in the State's custody was the least
restrictive alternative, as just indicated.

Finally, we find the NPT order insufficient to show that the court made
a reasonable efforts determination at the time of the removal.  The only
contemporaneous documentation in the record is the report of the
probation officer referred to in the order.  State Ex. IV-106, 1st page.
This report does not indicate that any services were provided to prevent
the child's removal from the home, as stated in the NPT order.

Sample Case #112

This case relates to a $207 payment for care received in 12/84 by a
child who the State said was placed in the State's temporary custody
pursuant to a court order dated 4/18/74.  The order found that the child
and his sibling were "neglected and abused children within the meaning
of the Child Welfare Law of the State of West Virginia," and ordered
that temporary custody be awarded to the State.  The record shows that
there had been reports that the child had been beaten by both his father
and mother.  State Ex. IV-112, 7th page.  ACYF found that the child was
ineligible for title IV-E payments on the ground that the court order
did not contain a contrary to the welfare determination.

The State argued that 1) the 4/18/74 order was based on unspecified
provisions of the Child Welfare Law which required findings which
satisfied the requirement for a contrary to the welfare determination;
and 2) a NPT order issued on 7/20/88 stated that continuation in the
home was contrary to the child's welfare, and thus corrected the
omission of a contrary to the welfare determination from the 4/18/74
order.  We reject both of these arguments.

The 4/18/74 order specifically referred to the abuse and neglect
provisions of the Child Welfare Law.  The only requirement of which we
are aware for a contrary to the welfare determination in the Child
Welfare Law in effect at that time is found in section 49-6-4.  That
section provided that "[i]f the court finds that the interests and
welfare of the child may best be served by the state department, it may
commit the child to the custody and guardianship of the state
department."  State Ex. DD.  It is nevertheless unclear that the court
was acting pursuant to this section.  Section 49-6-4 is captioned
"Commitment of neglected child to state department."  The 4/18/74 order
gives the State agency temporary custody of the child rather than
committing the child without qualification to the State agency as
authorized by this section.  Section 49-6-3 permits a court to order
temporary custody pending a hearing but does not specifically require a
contrary to the welfare finding.  State Ex. DD.  Accordingly, there is
no basis for finding that the court acted pursuant to State law
requiring a contrary to the welfare determination.

Moreover, we find the NPT order insufficient to show that the court made
a contrary to the welfare determination at the time of the removal since
there is no contemporaneous documentation in the record which might show
that such a determination was made.

Sample Case #180

This case relates to a payment of $144 for care received in 12/84 by a
child placed in the State's custody pursuant to an order dated 8/17/83.
The order granted temporary custody of the child and his sibling to the
State based on the joint motion of the State, the children (by their
attorney) and the mother.  A prior order by the same judge, issued
5/16/83, revoked a one-year improvement period previously granted to the
child's mother to improve her care for the child, stating in pertinent
part that "there is clear and convincing evidence sufficient to prove
that . . . the Adult Respondent did not make a good faith effort to
fulfill the duties of parenthood, that she did not provide the
necessities as required by law for the Infant Respondents, and that she
repeatedly avoided and evaded her responsibilities for the Infant
Respondents and that she has not assumed her parental role as a mother
of the said Infant Respondents. . . ."  State Ex. III-180, 12th and 13th
pages.  ACYF found that the child was ineligible for title IV-E payments
on the ground that the 8/17/83 order did not contain a contrary to the
welfare determination.

The State argued that 1) the language in the 5/16/83 order indicated
that the court made a contrary to the welfare determination; 2) the
8/17/83 order relied on unspecified provisions of the Child Welfare Law
which required findings which satisfied the contrary to the welfare
requirement; and 3) the NPT order issued 9/21/88 stated that
continuation in the home is contrary to the welfare of the child, and
thus corrected the omission of a contrary to the welfare determination
from the 8/17/83 order.  We conclude that the 5/16/83 order contained a
contrary to the welfare determination, and that the contrary to the
welfare requirement was satisfied because the subsequent order removing
the child from the home was based on the 5/16/84 order.  In light of
this conclusion, we need not address the State's other arguments.

ACYF did not argue that the 5/16/83 order did not contain a contrary to
the welfare determination.  (In any event, such a determination can
reasonably be inferred from the reasons for revoking the mother's
improvement period which are listed in that order.)  However, ACYF
contended that the contrary to the welfare requirement was not satisfied
unless the determination was in the order actually removing the child
from the home.  We disagree.  Section 472(a)(1) of the Act requires that
the child's removal from home be "the result of a judicial determination
to the effect that continuation therein would be contrary to the welfare
of such child. . . ."  (Emphasis added.)  Since it was necessary to
revoke the mother's improvement period before the child could be removed
from the home,  it is fair to conclude that removal resulted from the
5/16/83 order as well as from the 8/17/83 order.  .Sample Case #194

This case relates to a $1.00 payment made for care received on 12/1/84
by a child placed in the State's custody pursuant to a court order dated
9/12/84.  This order stated that "the Court finds that the respondent is
so unmanageable, ungovernable and antisocial that no other reasonable
alternative exists for treatment or restraint other than placements
[sic] in a secure facility."  The court therefore ordered the child
committed to a "Status Offense Facility" for a period not to exceed one
year and also placed her in the temporary custody of the State agency
for such time as she remained at the facility.  State Ex. III-194, 1st
and 2nd pages.  The order was apparently issued in response to a
petition dated 8/9/84 which requested modification of a previous
dispositional order to a more restrictive alternative on the ground that
the child had failed to abide by her curfew, had repeatedly left home
without authorization and remained away overnight on several occasions,
and had been generally beyond the control of her guardian.  State Ex.
III-194, 7th page.  ACYF found that the child was ineligible for title
IV-E payments on the ground that the 9/12/84 order did not contain a
reasonable efforts determination.

The State argued that 1) the language of the 9/12/84 order indicated
that the court made a reasonable efforts determination; 2) the 9/12/84
order was based on section 49-5-13(b)(6) of the Child Welfare Law, which
required findings which satisfied the reasonable efforts requirement;
and 3) a NPT order dated 8/10/88 stated that reasonable efforts to
prevent the child's removal from the home were not possible under the
circumstances, and thus corrected the omission of a reasonable efforts
determination from the 9/12/84 order.  We reject all three arguments.
21/

We see nothing in the 9/12/84 order which constitutes a reasonable
efforts determination.  While the statement that "no other alternative
exists for treatment or restraint" is arguably a finding that preventive
services could not be provided, such a finding, as noted previously,
satisfies the reasonable efforts requirement only if there is an
emergency situation which necessitates the child's immediate removal
from the home.  There is no evidence on the face of the order that the
court believed that an emergency situation existed here nor did the
petition allege that one existed.

The record also fails to support the State's contention that the
reasonable efforts requirement was satisfied by the court's reliance on
State law.  The 9/12/84 order does not cite any provisions of the Child
Welfare Law.  Even if the order was authorized by section 49-13-5(b)(6),
as the State contended, we see nothing in that section which requires a
reasonable efforts determination.  Instead, it merely requires a finding
"that the child is so totally unmanageable, ungovernable and antisocial
that the child is amenable to no treatment or restraint short of
incarceration. . . ."  Moreover, as previously discussed, the
requirement in section 49-13-5(b) that the court "give precedence to the
least restrictive of the following alternatives consistent with the best
interests and welfare of the public and the child" is not clearly a
requirement for a reasonable efforts determination.  We note in any
event that it is possible that the court was not applying section
49-13-5(b)(6), but rather section 49-5-14, which appears to permit a
court to modify an order to provide for a more restrictive alternative
simply because the child has violated a previous court order, as this
child had.

Finally, we find the NPT order insufficient to show that the court made
a reasonable efforts determination at the time of the removal.  The only
contemporaneous documentation in the record is the 8/9/84 petition,
which is not referred to in the original order.  Thus, even if the court
would have made a reasonable efforts determination based on the facts
alleged in the petition, we cannot conclude that such a determination
was made.

Sample Case #215

This case relates to a $90 payment made for care received in 7/85 by a
child placed in the State's temporary custody pursuant to a court order
dated 3/26/85.  The court order stated that a domestic violence petition
had been filed by the child's mother, that both the child's mother and
father were present at a hearing held "for the purpose of rendering a
temporary order under the provision of West Virginia Code Section
48-2A-5," and that custody of the child and her sibling was awarded to
the State agency until a full hearing on the petition, scheduled for two
days later.  State Ex. III-215, 1st page.  An order dated 3/28/85 stated
that a hearing was held under "Code Section 48-2A-5(2)" and that by
"consent of the parties" and "with no adjudication on the merits of the
allegations in the petition," the custody of the children was to remain
with the State agency, which was to place the children with such person
or persons as it deemed appropriate, with limited visitation rights
granted to the father.  State Ex. IV-215, 9th page.  The record shows
that the mother's petition alleged that the father sexually abused the
child.  State Ex. IV-215, 2nd page.   The record also indicates that, on
the same day the mother's petition was filed, the father filed a "mental
hygiene petition" in order to have the mother committed, that the mother
had been under psychiatric care for five years at the time she filed the
petition, and that some time in March 1985, she asked the State agency
to place the children in foster care because she felt she was having
"another emotional breakdown."  State Ex. IV-215, 1st, 13th and 14th
pages.  ACYF found that the child was ineligible for title IV-E payments
on the ground that a reasonable efforts determination had not been made.

The State argued that 1) the 3/26/85 court order was based on section
48-2A-5 of the Child Welfare Law, which required findings which
satisfied the reasonable efforts requirement; and 2) the NPT order
issued 8/8/88 stated that reasonable efforts to prevent removal were not
possible under the circumstances, and thus corrected the omission of a
reasonable efforts determination from the 3/26/85 order.  We reject both
of these arguments.

Although the 3/26/85 order specifically referred to section 48-2A-5 of
the Child Welfare Law, we find that this did not satisfy the reasonable
efforts requirement.   This section states in pertinent part that --

 (1) Upon the filing of a verified petition under this article,
 the court may enter such temporary orders as it may deem
 necessary to protect the complainant or minor children from
 abuse, and upon good cause shown, may do so ex parte. . . .
 Clear and convincing evidence of immediate and present danger of
 abuse to the complainant or minor children shall constitute good
 cause. . . .

There is no express requirement in this section that the court find that
the provision of preventive services was not possible, as the NPT order
stated was the case here.  Moreover, as previously discussed, the lack
of preventive services is reasonable only if the court finds that an
emergency situation exists.  A comparable finding, i.e., that there is
"clear and convincing evidence of immediate and present danger of abuse
to the . . . minor children," is required by section 48-2A-5(1) only if
the court wishes to issue an order ex parte.  In this case, the order
granting temporary custody to the State agency was not issued ex parte
since both parents were present at the 3/26/85 hearing.  Accordingly, as
applied here, section 48-2A-5(1) did not require a reasonable efforts
finding.  While there is also a reference in the 3/28/85 order to
section 48-2A-5(2), that section too contains no requirement for a
reasonable efforts finding but requires only that the allegation of
abuse be proved by a preponderance of the evidence in order for the
court to issue a protective order or approve a consent agreement.

In addition, we find the NPT order insufficient to show that the court
made a reasonable efforts determination at the time of the removal since
there is no contemporaneous documentation in the record which might show
that a reasonable efforts determination was made.

Sample Case #232

Sample case #232 relates to a $2,859 payment for care received in 3/85
by a child placed in the State's custody pursuant to a court order dated
5/11/83.  The order stated that the case came before the court "for
further disposition," and ordered that custody of the child be given to
the State agency and that he be placed at the "Cabell County Youth
Center" pending other placement "by Braley and Thompson."  State Ex.
III-232, 1st page.  The record indicates that the child had been on
probation, having been given a suspended sentence for shoplifting and
subsequently charged with breaking and entering.  State Ex. III-232, 4th
page.  ACYF found that the child was ineligible for title IV-E payments
because the 5/11/83 order lacked a contrary to the welfare
determination.

The State argued that 1) the 5/11/83 order was based on delinquency
provisions of the Child Welfare Law which required findings which
satisfied the contrary to the welfare requirement; and 2) the NPT order
issued 8/10/88 stated that continuation in the home was contrary to the
welfare of the child, and thus corrected the omission of a contrary to
the welfare finding from the 5/11/83 order.  We reject both arguments.

There is no reference in the 5/11/83 order to any provision of the Child
Welfare Law.  The State argued, however, that the court "expressly
relied on the provisions in the West Virginia Child Welfare Law relating
to the removal of delinquent children."  State brief dated 1/2/91, p.
44.  It is possible that the court might have been applying section
49-5-13, which provides several alternative dispositions for a child who
has been adjudged delinquent, stating that the court "shall give
precedence to the least restrictive of the . . . alternatives consistent
with the best interests and welfare of the public and the child. . . ."
However, this section does not require a finding which satisfies the
contrary to the welfare requirement since the section requires that the
court consider not only the child's interests but also the interests of
the public, while the contrary to the welfare requirement specifically
addresses only the child's welfare.  It is also possible that the court
might have been applying section 49-5-14, which appears to permit a
court to modify an order to provide for a more restrictive alternative
simply because the child has violated probation, as this child had,
without requiring any finding which would satisfy the contrary to the
welfare requirement.

We also find the NPT order insufficient to show that the court made a
contrary to the welfare determination at the time of the removal since
there is no contemporaneous documentation in the record which might show
that a contrary to the welfare determination was made.

Sample Case #236

This case relates to a $127 payment for care received in 9/84 by a child
placed in the State's temporary custody pursuant to a court order dated
6/25/84.  The order stated that "the infant child has been abandoned by
his mother . . . on June 20, 1984" and awarded temporary custody of the
child to the State agency, setting the matter for hearing on 6/28/84.
State Ex. III-236, 1st page.  The petition on which the 6/25/84 order
was based stated that the child's mother left the four-year-old child
with two individuals without providing money, proper food or clothing,
stating that she would return for him in a few hours.  The petition
further stated that, when the mother had not returned in two days, the
individuals with whom the child was left brought the child to the State
agency.  According to the petition, moreover, the mother's whereabouts
were unknown at the time the petition was filed.  (The petition is
undated, but stamped received on 6/25/84.)  State Ex. IV-236, 4th page.
ACYF found that the child was ineligible for title IV-E payments on the
ground that there was no reasonable efforts determination in the 6/25/84
order.

The State argued that 1) the 6/25/84 order was based on sections 49-6-3
and 49-6-5(a)(5) of the Child Welfare Law, which required findings which
satisfied the reasonable efforts requirement; and 2) the NPT order
issued 9/9/88 stated that reasonable efforts to prevent the child's
removal from the home were made, and thus corrected the omission of a
reasonable efforts determination from the 6/25/84 order.  We reject both
arguments.

Although the State identified specific provisions of the Child Welfare
Law on which it contended the 6/25/84 order relied, the order does not
refer to any statutory authority or contain any language which resembles
that of the provisions identified by the State.  Moreover, the sections
which the State cited authorize a number of different proceedings
concerning neglected children.  Accordingly, we conclude that there is
insufficient evidence to show that the court order was based on State
law requiring a reasonable efforts finding.

We also find the NPT order insufficient to show that the court made a
reasonable efforts determination at the time of the removal.  The only
contemporaneous documentation in the record is the first page of the
petition which alleged that the child had been abandoned.  However,
since the order does not refer to the petition, there is no basis for
concluding that the court adopted the facts alleged in the petition.
Thus, even if the court would have determined based on those facts that
reasonable efforts had been made (as the NPT order stated was the case
here), we cannot conclude that such a determination was made here. 22/

Sample Cases #238, #240 and #243

Sample case #238 relates to a $1,460 payment for care received in 10/84
by a child who the State said was placed in the State's custody pursuant
to a court order dated 10/18/83.  Sample cases #240 and #243 relate to
payments of $1,460 and $48 for care received by the same child in 12/84
and 1/85, respectively.  The 10/18/83 order was captioned "Delinquent
Child Proceeding" and ordered that "upon representation by the State
through its attorney, that the health, safety, and welfare of the child
demand such custody," the child "be taken into custody by the Sheriff of
Marshall County, and thereupon committed to the temporary custody of the
West Virginia Department of Human Services for emergency placement, in
the event the child cannot be released to the custody of said child's
parents or custodian, or the circumstances warrant otherwise. . . ."
ACYF found that the child was ineligible for title IV-E payments on the
ground that the 10/18/83 order did not include a reasonable efforts
determination.

The State argued that 1) the language in the 10/18/83 order to the
effect that the child's health, safety and welfare demanded custody
constituted a "best interests" determination which satisfied the
reasonable efforts requirement; 2) the 10/18/83 order relied on section
49-5-8(a) of the Child Welfare Law, which required findings which
satisfied the reasonable efforts requirement; and 3) the NPT order
issued 9/8/88 stated that reasonable efforts to prevent the child's
removal from the home were not possible under the circumstances, and
thus corrected the omission of a reasonable efforts determination from
the 10/18/83 order.

We reject all three arguments on the ground that the 10/18/83 order does
not conclusively determine that the child should be placed in the
State's custody.  Instead, the order gives the State agency the option
of either retaining custody and finding an emergency placement for the
child or giving the child back to his parents.  Since the court left
open the possibility of return to the parents, the court would not have
determined that preventive efforts were not possible under the
circumstances, as the NPT order stated was the case here.  Thus, we need
not consider what findings were made pursuant to State law or what
contemporaneous documentation supported the NPT order.

Sample Case #242

This case relates to a $1,408.90 payment for care received in 1/85 by a
child placed in the State's custody pursuant to a court order dated
8/29/84.  The order stated that it was "in the best interests of the . .
. [child] and the people of the state of West Virginia to grant an
improvement period . . . ," and ordered an improvement period of 12
months on the condition that the child voluntarily participate in a
residential program called "Teen Challenge" and be placed in the
temporary custody of the State agency while at "Teen Challenge."  The
transcript of the court proceeding which resulted in the issuance of the
order shows that the child had requested that he be permitted to
participate in "Teen Challenge," and that his mother and a sister who
had legal custody agreed to the request.  State Ex. IV-242.  The record
also indicates that a juvenile petition had been filed alleging that the
child had forged and uttered several different checks.  State Ex.
IV-242, 2nd page.  ACYF found that the child was ineligible for title
IV-E payments because there was no reasonable efforts determination in
the 8/29/84 order.

The State argued that 1) the 8/29/84 order was based on the delinquency
provisions of the Child Welfare Law, which required findings that
satisfied the reasonable efforts requirement; and 2) the NPT order
issued 6/22/88 stated that reasonable efforts to prevent the child's
removal from the home were not possible under the circumstances, and
thus corrected the omission of a reasonable efforts determination from
the 8/29/84 order.  We reject both of these arguments.

While the State argued that the 8/29/84 order relied on the delinquency
provisions of the Child Welfare Law, the order does not contain any
reference to that statute.  The order does refer to the petition
alleging the child to be a delinquent child, which states that it was
filed pursuant to section 49-6-1; however, this section pertains to
petitions regarding neglected or abused children.  It nevertheless
appears that, given the facts of the case, the 8/29/84 order may have
been authorized by section 49-5-9, which provides that following the
filing of a juvenile petition, the court shall hold a preliminary
hearing, which may be waived by the child (as was done here).  The
section further provides that --

 [t]he child may move to be allowed an improvement period for a
 period not to exceed one year.  If the court is satisfied that
 the best interest of the child is likely to be served by an
 improvement period, the court may delay the adjudicatory hearing
 and allow a noncustodial improvement period upon terms
 calculated to serve the rehabilitative needs of the child.  At
 the conclusion of the improvement period, the court shall
 dismiss the proceeding if the terms have been fulfilled;
 otherwise the court shall proceed to the adjudicatory stage.

Even assuming the court had this section in mind when it issued the
order, however, we see nothing in the section which requires a
reasonable efforts finding.  As previously indicated, a reference to the
child's "best interest" does not satisfy the reasonable efforts
requirement since it does not indicate that the court determined that
preventive services were provided or (as stated in the NPT order) were
not possible due to an emergency situation.

Moreover, we find the NPT order insufficient to show that the court made
a reasonable efforts determination at the time of the removal.  The
State provided a copy of both the petition on which the 8/29/84 order
was based and the transcript of the court proceeding which resulted in
the issuance of that order.  There is no indication in either document
that an emergency situation existed which justified the lack of
preventive services.  Furthermore, there is no other contemporaneous
documentation which supports a conclusion that a reasonable efforts
determination was omitted from the 8/29/84 order by mistake.

Sample Case #247

This case relates to a $600 payment made for care received 5/85 by a
child placed in the State's custody pursuant to a court order dated
5/26/82.  The order was captioned "Delinquent Child Proceeding" and
indicated that a detention hearing had been held and that the court was
ordering the child to be placed in the temporary custody of the State
agency for placement in "Samaritan House" pending a preliminary hearing.
State Ex III-247, 1st page.  The petition on which the order was based
was filed by the child's mother, alleging that the child "was
incorrigible in that he without just cause, habitually and continually
refuses to respond to the supervision legally required of said
respondent child's parents, as outlined in Chapter 49, Article 1,
Section 4, paragraph (3) of the Code of West Virginia. . . ."  State Ex.
IV-247, 2nd page.  The record shows that several months before the order
was issued, the child had been given 30 days probation for breaking and
entering.  State Ex. III-247, 9th page.  ACYF found that the child was
ineligible for title IV-E payments on the ground that there was no
contrary to the welfare determination in the 5/26/82 order.

The State argued that 1) the 5/26/82 order relied on the delinquency
provisions of the Child Welfare Law which required findings which
satisfied the contrary to the welfare requirement; and 2) the NPT order
issued 9/8/88 stated that continuation in the home was contrary to the
child's welfare, and thus corrected the omission of a contrary to the
welfare finding from the 5/26/82 order.  We reject both arguments.

Although the 5/26/82 order does not cite any provision of the Child
Welfare Law, it is captioned "Delinquent Child Proceeding" and refers to
a petition which alleges that the child is a delinquent child within the
meaning of section 49-1-4 of the Child Welfare Law.  Given the facts in
the case, the likely authority for the order was section 49-5-8 of the
Child Welfare Law, which provides for a detention hearing prior to the
preliminary hearing where a juvenile petition has been filed.  Section
49-5-8(d) states in pertinent part that --

 [t]he sole mandatory issue at the detention hearing shall be
 whether the child shall be detained pending further court
 proceedings.  The court shall, if advisable, and if the health,
 safety and welfare of the child will not be endangered thereby,
 release the child on recognizance to his parents, custodians or
 an appropriate agency. . . .

Under this provision, the court can decide not to release the child to
his parents if the court finds that this is not "advisable" without also
finding that this would endanger the child's welfare.  Thus, even if the
court intended to rely on this provision, this does not ensure that the
court made a contrary to the welfare determination.

Moreover, we find the NPT order insufficient to show that the court made
a contrary to the welfare determination at the time of the removal.  The
only contemporaneous documentation in the record is the petition on
which the 5/26/82 order was based.  While that order refers to the
petition, it does not expressly adopt as findings the allegations in the
petition.

Sample Case #254

This case relates to a $608 payment made for care received by a child
placed in the State's temporary custody pursuant to court order dated
1/4/84. 23/  The order stated that the court was notified on 12/29/84 by
an individual who appears to have been a child protective services
worker that the child was in need of emergency placement, and that "[i]t
was therefore ORDERED" that the child "be placed in the temporary . . .
custody . . . of the West Virginia Department of Human Services agency
with placement to be determined as soon as possible."  State Ex.
III-254, 1st page.  It appears that the 1/4/84 order confirmed an oral
order by the court issued 12/29/83.  See State Ex. IV-254, 1st page.
The record also shows that the child ran away from home on 11/23/83
after fighting with her mother and was staying with her older sister
when she was picked up by the police based on a runaway petition.  State
Ex. IV-254, 1st and 3rd pages.  ACYF found that the child was ineligible
for title IV-E payments on the ground that the 1/4/84 order did not
contain either a contrary to the welfare determination or a reasonable
efforts determination.

The State argued that 1) the language in the 1/4/84 order to the effect
that the child "was in need of an emergency placement" showed that the
court made contrary to the welfare and reasonable efforts
determinations; 2) the 1/4/84 order relied on the delinquency provisions
of the Child Welfare Law which required findings which satisfied the
contrary to the welfare and reasonable efforts requirements; and 3) the
NPT order issued 9/9/88 (and entered 9/16/88) stated that continuation
in the home was contrary to the child's welfare and that reasonable
efforts to prevent the child's removal from the home were made, and thus
corrected the omission of these determinations from the 1/4/84 order.
We reject the State's arguments that a reasonable efforts determination
was made.  Accordingly, we need not consider whether the contrary to the
welfare requirement was satisfied.

We see nothing in the language of the 1/4/84 order which indicates that
the court made a reasonable efforts determination.  It is not clear that
the court made a finding that the child was in need of an emergency
placement rather than simply noting that an allegation to that effect
had been made.  Even if the court made such a finding, moreover, this
does not eliminate the need for some indication that the court
determined that this justified the lack of preventive services.

In addition, there is no basis for concluding that the reasonable
efforts requirement was satisfied by the court's reliance on the
delinquency provisions of the Child Welfare Law.  The 1/4/84 order does
not refer to any provisions of the Child Welfare Law and is not
identified as pertaining to a delinquency proceeding.  Nevertheless,
given the facts of the case, it appears that the order could have been
issued pursuant to section 49-5-8.  That section provides in pertinent
part that, upon the filing of a juvenile petition, a child may be taken
into custody by a law-enforcement official if "emergency conditions
exist . . . ."  The section further provides for a detention hearing,
and states that "[t]he court shall, if advisable, and if the health,
safety and welfare of the child will not be endangered thereby, release
the child on recognizance to his parents, custodians or an appropriate
agency . . ." until a preliminary hearing is held.  However, even if the
court was cognizant of this provision when it issued the 1/4/84 order,
there is no requirement in the section that the court consider whether
reasonable efforts were made to prevent the child's removal from the
home.

Finally, we find the NPT order insufficient to show that the court made
a reasonable efforts determination at the time of the removal since
there is no contemporaneous documentation in the record which might show
that such a determination was made.

Conclusion

Based on the foregoing, we conclude that the disallowance was properly
based on extrapolation from those sample cases in the Stage II sample
which were ineligible.  We further conclude that ACYF incorrectly found
sample cases #46, #91 and #180 ineligible and reverse the disallowance
pertaining to those cases as well as to sample case #222, which ACYF
admitted it incorrectly found ineligible.  We uphold the disallowance
pertaining to the remaining sample cases, subject to reduction upon a
showing by the State that the amount of the payment in sample case #82
was overstated (see note 16 above).

 _____________________________ Cecilia Sparks Ford

 _____________________________ Donald F. Garrett

 _____________________________ Judith A. Ballard Presiding Board
 Member

1.  Effective April 15, 1991, ACYF was one of several agencies combined
into the Administration for Children and Families.

2.  There are a number of cases in which the court order does not appear
to include a contrary to the welfare determination, but ACYF cited only
the lack of a reasonable efforts determination as a deficiency.  See
e.g., sample case #12.  We assume for purposes of this decision that the
contrary to the welfare requirement was met in such cases.

3.  Both parties to this appeal appeared to read the judicial
determination requirement as applying to the initial order removing the
child from the home rather than to any subsequent order continuing the
State's custody.  While in some cases, the initial court orders provided
by the State to establish that the requisite judicial determinations
were made authorized the child's removal for a temporary period which
may have ended before the date of care for which payment was made, ACYF
never objected to them on this basis.  We therefore assume for purposes
of this decision that the judicial determination requirement applies
only to the initial orders upon removal.

4.  Nunc pro tunc literally means "now for then."

5.  However, the review guide provides that "[i]f a stage one review
indicates that a child or provider is ineligible, his/her eligibility
for the entire year should be reviewed and disallowances taken for
whatever portion of the year he/she is ineligible."  IM-85-25,
Attachment, p. 6.

6.  The State clearly misread Oklahoma Dept. of Human Services, DAB No.
1223 (1991), which it asserted held that "the agency may not rely upon
the second stage of a Title IV-D audit if the state successfully
challenges the results of the agency's Stage I conclusion."  State's
brief dated 3/1/91, p. 3.  The statutory procedures applicable to title
IV-D compliance audits (which do not identify unallowable costs but
establish the basis for a percentage reduction in funding) specifically
provide that, if a state passes either a program results audit or the
follow-up review after a corrective action period, no funding reduction
will be imposed.  See section 403(h) of the Act.  Here, it was within
ACYF's discretion to discontinue an audit process for a period if
satisfied that a state was meeting applicable requirements, but arguably
not within ACYF's discretion to allow funding once unallowable costs
were identified.

7.  The provisions of the West Virginia Child Welfare Law are at
sections 49-1-1 et seq. of the State code while the provisions of the
Domestic Relations Law are at sections 48-2A-1 et seq.  For convenience,
we refer to all relevant provisions as part of the Child Welfare Law.

8.  The State also asserted that West Virginia case law requires a court
to make the determinations specified in section 472(a)(1) of the Act.
However, none of the orders in question here cited any court cases.
Thus, we cannot assume that the court was aware of any State case law to
this effect.

9.  While the Board generally defers to a state's interpretation of its
own law, the issue here is whether various provisions of the Child
Welfare Law unambiguously require a particular result.  Thus, we are not
dealing with a matter of interpreting ambiguous provisions but of
determining whether the State law is clear on its face.  We therefore
conclude that it would not aid the State's case to provide an opinion of
its Attorney General regarding what is required by the provisions in
question.  (The State offered to provide such an opinion in response to
ACYF's assertion, which we find unsupportable, that the lack of such an
opinion should be held against the State.  ACYF apparently had in mind
the statement in ACYF-PIQ-86-02 that "it may be necessary to request a
State Attorney General's opinion" to support a state's reliance on state
law to satisfy the judicial determination requirements.  State Ex. W, p.
3.)  While the State's Attorney General might state authoritatively that
a provision of the Child Welfare Law permitted a court to order a
child's removal from the home only upon the findings required by section
472 of the Act, the issue here is whether this was clear on the face of
the provision.

10.  Another flaw in some of the motions for NPT orders is the
allegation that reasonable efforts to prevent the child's removal from
his home were not possible because the State agency did not learn of the
case until the order removing the child was issued.  (See, e.g., sample
case #25.)  This would not appear to be a valid reason why reasonable
efforts could not have been provided.  The State undertook in its title
IV-E plan to provide such efforts in each case.  Moreover, under some
provisions of the Child Welfare Law, e.g., section 49-5-13(b), the court
itself could have ordered that preventive services be provided in lieu
of ordering the removal of the child from his home.  Finally, under
section 472(a)(1) of the Act, the State agency's lack of prior knowledge
of the case would not justify the lack of preventive services unless an
emergency situation existed where removal was necessary to protect the
child.

11.  Even if the State were correct that State case law limited the use
of NPT orders to the correction of mistakes in the original order, we
are not willing to assume that the courts issuing the NPT orders here
were aware of this law since the issuance of NPT orders is unusual, the
motions for the orders were uncontested, and nothing in the motions
specifically refers to case law on NPT orders.

12.  Also, in the absence of contemporaneous documentation showing that
evidence of the efforts made to prevent the child's removal from the
home or of an emergency situation making such efforts impossible was
presented to the court at the time of the original order, it is
reasonable to infer that the court did not address the issue at the
time.  This inference is based on the principle that the court could not
have found efforts to be reasonable if it was not informed at the time
about what those efforts were.  Similarly, unless there is
contemporaneous documentation showing that evidence regarding the
child's home situation was presented to the court at the time of the
original order, it is reasonable to infer that the court could not have
determined that continuation in the home was contrary to the child's
welfare.

13.  The amount of the payment and the date of care are not indicated in
the record.

14.  Moreover, the record includes a September 19, 1986 letter from the
county assistant prosecuting attorney (who participated in the original
proceeding) which refers to the 11/23/83 order and states that "[a]t
this time there is no basis for amending that Court order as it appears
to properly set forth the proceedings which occurred on that date."
State Ex. IV-C.  This undercuts the State's position that there was a
mistake made in the original order which was corrected by the NPT order.

15.  In addition, the fact that the petition referred to in the order
cited other provisions of the Child Welfare Law did not establish that
the court relied on section 49-6-3(a).

16.  The amount of the payment in sample case #82 is unclear.  The
attachment to the disallowance letter identified the amount of the
payment as $197 while the State identified the amount of the payment as
$127.  See State Ex. A, p. 4 and State Ex. II-82, 13th page.  If the
State believes that ACYF overstated the amount of the payment, it
should, within 30 days of its receipt of this decision, furnish
documentation to ACYF which establishes the correct amount.

17.  The NPT order states that it is effective 6/11/84 and thus appears
to relate to the second order, issued on that date.

18.  Under ACYF's policy, the relevant date would be the date of care
covered by the payment, not the date payment was issued.  In this case,
however, the difference between the dates of care and the dates the
claims were filed or the payments were made was not significant.

19.  This is a case summary prepared by the State after the disallowance
was issued rather than primary documentation; however, ACYF did not give
any reason why we should conclude that the case summary is incorrect.

20.  We also note that if the facility referred to in the 10/14/84 order
was a detention facility and the child was still in this facility on the
date of care in question, the child may have been ineligible for title
IV-E payments on the ground that FFP is not available for the cost of
care provided by a detention facility.  42 C.F.R. 436.1004(a)(1).

21.  Another ground for questioning eligibility is that the payment was
for care provided in a detention facility.  See note 20, supra.

22.  The petition stated that the State agency had posted a notice on
the mother's last known residence to the effect that the child was in
its custody.  While the court could arguably have found that this
constituted reasonable efforts, this finding cannot be inferred from the
language of the 6/25/84 order.

23.  The date of care is not shown in the