Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Oregon Department of Human Resources
Docket No. A-95-126
Decision No. 1586
DATE: July 1, 1996
DECISION
The Oregon Department of Human Resources (Oregon)
appealed a determination by the Administration for
Children and Families (ACF) disallowing $747,670 in
federal funds claimed under title IV-E of the Social
Security Act (Act) for foster care maintenance payments
made by Oregon during fiscal year 1989. The disallowance
was based on an ACF review of a sample of 293 payments.
1/ ACF calculated the disallowance by extrapolating from
the payments it determined were ineligible to the
universe of payments. ACF originally determined that 50
payments in the sample were ineligible. ACF subsequently
withdrew its findings of ineligibility as to some sample
payments, although it did not identify the resulting
reduction in the disallowance amount. Oregon disputed
ACF's findings of ineligibility with respect to 16 of the
remaining sample payments.
ACF found all but one of the disputed payments (sample
no. 184) ineligible on the ground that Oregon failed to
establish that the children in question were removed from
their homes pursuant to a judicial determination to the
effect that continuation therein would be contrary to the
child's welfare, as required by section 472(a)(1) of the
Act. Specifically, ACF found that there was no contrary-
to-the-welfare (CTW) determination in the temporary
custody order which first removed the child from home.
Oregon argued that the requirement for a CTW
determination was satisfied in the case of each payment
by a CTW determination in a later dispositional order
which was issued by the court within six months of the
child's removal from home. Oregon relied on the Board's
decision in Pennsylvania Dept. of Public Welfare, DAB No.
1508 (1995), which held that section 472(a)(1) does not
require a CTW determination in a temporary order, but may
be satisfied by a CTW determination in a dispositional
order issued in proceedings initiated within six months
of the child's removal from home. ACF argued that DAB
No. 1508 was incorrectly decided with respect to this
matter. In addition, ACF argued that the holding in DAB
No. 1508 did not apply to some of the sample payments in
question here because, unlike the sample payments in DAB
No. 1508, these sample payments involved temporary orders
which were not time-limited.
In the remaining disputed case, sample no. 184, ACF found
that Oregon failed to establish that there was a judicial
determination that reasonable efforts were made to
prevent the child's removal from home or to return the
child home, as also required by section 472(a)(1) of the
Act. Oregon argued that this requirement was satisfied
by a court order which found that no reasonable efforts
had been made because the state agency had not had
contact with the child's only living parent.
As discussed in detail below, we find that the Board's
holding in DAB No. 1508 is consistent with the language
and underlying purpose of the statute. ACF has never
interpreted the requirement in the Act that the child be
removed from home as the "result of" a judicial CTW
determination to mean that this determination must be
made at the time the child is removed from home.
Instead, the Act contemplates, and ACF policy provides,
that the CTW determination may be made in an order
removing the child from home issued in proceedings
initiated up to six months after the child's physical
removal. ACF is unreasonable in taking the position that
the issuance of a temporary court order somehow means
that the judicial determination in a dispositional
hearing does not result in a child's removal within the
meaning of the Act. Such a temporary order simply
provides judicial oversight of a child while the state
agency obtains information based on which the court can
make a CTW determination. There is nothing in the Act
which warrants denying IV-E funding for a child who had
this extra procedural safeguard, but providing IV-E
funding for a child who was removed from home with no
judicial involvement until a dispositional order was
issued after a full proceeding. 2/
Moreover, the state statute in question here in effect
provided for issuance of a temporary order to remove the
child from home in an emergency while the court obtains
additional information. Thus, although the temporary
custody orders were not on their face time-limited, they
were not distinguishable from the shelter orders in DAB
No. 1508. Accordingly, the requirement for a CTW
determination was satisfied by subsequent dispositional
orders containing such a determination issued within six
months of the child's removal from home.
We further find that the court order on which Oregon
relied in sample no. 184 did not contain a reasonable
efforts determination which met the requirements of
section 472(a)(1).
We therefore reverse the disallowance with respect to all
of the disputed sample payments except sample no. 184.
Below, we first describe relevant provisions of federal
and state law. Next, we discuss the issues raised by the
temporary custody orders. Finally, we discuss sample
case no. 184.
Relevant federal and state law
Title IV-E Under title IV-E of the Act, federal matching
of state foster care maintenance payments is available
for children in foster care who would otherwise be
eligible for Aid to Families with Dependent Children
(AFDC) under title IV-A of the Act. Prior to the
enactment of title IV-E (in the Adoption Assistance and
Child Welfare Act of 1980, Public Law No. 96-272),
funding for foster care maintenance payments was
available under title IV-A (as AFDC-FC).
Section 472(a) of the Act provides that foster care
maintenance payments will be available for --
a child who would meet the [AFDC eligibility]
requirements . . . but for his removal from the home
of a relative . . . , if--
(1) the removal from the home . . . was the
result of a judicial determination to the effect
that continuation therein would be contrary to
the child's welfare and (effective October 1,
1983) that reasonable efforts of the type
described in section 471(a)(15) of this title
have been made . . . ;
(2) such child's placement and care are the
responsibility of . . . the State agency
administering the State plan approved under
section 471 . . . ;
(3) such child has been placed in a foster family
home or child-care institution as a result of the
. . . judicial determination . . . .'
(4) such child--
(A) received aid under [title IV-A] in or for
the month in which . . . court proceedings
leading to the removal of such child from the
home were initiated, or
(B) (i) would have received such aid in or for
such month if application had been made therefor,
or (ii) had been living with a relative specified
in section 406(a) within six months prior to the
month in which . . . such proceedings were
initiated, and would have received such aid in or
for such month if in such month he had been
living with such a relative and application
therefor had been made.
Section 471(a)(15), referred to in section 472(a)(1),
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 legislative history of Public Law No. 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."
Sen. Rep. No. 336, 96th Cong., 1st Sess. 16 (1979).
Oregon's juvenile code Under Oregon's juvenile code, any
person may file a petition in the juvenile court alleging
that a child is within the jurisdiction of the court.
ORS 419.482(1). 3/ Grounds for jurisdiction include that
the child's parents or any other person having custody of
the child "have abandoned the [child], failed to provide
the [child] with the support or education required by
law, subjected the [child] to cruelty or depravity or to
unexplained physical injury or failed to provide the
[child] with the care, guidance and protection necessary
for the physical, mental or emotional well-being of the
[child]." ORS 419.476(e). ORS 419.482(3) provides that
"[a]t any time after a petition is filed, the court may
make an order providing for temporary custody of the
child." ORS 419.486(1) provides that "[p]romptly after
the petition is filed, there shall be an investigation of
the circumstances concerning the child." It further
provides that "[n]o later than 60 days after the petition
is filed," a summons must be issued requiring the person
who has physical custody of the child to appear with the
child at a hearing on the petition. The hearing must be
scheduled for "a reasonable time, not less than 24 hours,
after the issuance of the summons." ORS 419.486(3). At
the conclusion of the hearing, "the court shall enter an
appropriate order directing the disposition to be made of
the case." ORS 419.505. ORS 419.507 sets out several
dispositions which the court may order "when the court
determines it would be in the best interest and welfare
of the child. . . ." The dispositions include placing
the child in the legal custody of the Children's Services
Division "for care, placement and supervision."
Oregon's juvenile code also provides that, under certain
circumstances, authorized persons may take a child into
temporary custody prior to the filing of a petition. ORS
419.569(1). These circumstances include "[w]here the
child's condition or surroundings reasonably appear to be
such as to jeopardize the child's welfare . . . ." ORS
419.569(1)(b). The person taking the child into custody
is required to take the child before the court or notify
the court "without unnecessary delay." ORS 419.573(3).
No child may be held in custody more than 24 hours
(excluding Saturdays, Sundays and judicial holidays),
except on order of the court made pursuant to a hearing.
ORS 419.577(3)(a). The court may order that the child
remain in custody subject to further order (ORS
419.577(1)(e)) and may direct that a petition be filed
(ORS 419.482(2)(b)).
Temporary custody orders
1. Factual background
Temporary custody orders were issued in all of the 15
sample cases which ACF found ineligible on the ground
that they lacked a CTW determination. In four of the
cases, the temporary custody order either expressly
limited the duration of the order or set a date for
further review by the court. None of the temporary
custody orders contained a CTW determination. In each
case, within six months of the child's removal from home,
the court issued a dispositional order which contained a
CTW determination. 4/
2. DAB No. 1508
At issue here is whether the Board correctly held in DAB
No. 1508 that section 472(a)(1) does not require a CTW
determination in a temporary custody order, but may be
satisfied by a CTW determination in a dispositional order
issued in proceedings initiated within six months of the
child's removal from home. DAB No. 1508 involved, in
pertinent part, a finding by ACF that foster care
maintenance payments were ineligible for IV-E funding
where there was no CTW determination in the "shelter
order" or "detention order" issued by the juvenile court.
These orders were issued pursuant to Pennsylvania's
Juvenile Act, which permitted a child to be placed in a
shelter care or detention facility prior to the filing of
a petition requesting that the child be adjudicated
dependent or delinquent. A petition was required to be
filed within 24 hours of the child's admission to shelter
care or detention. Within 72 hours of the child's
admission, the court was required to hold an informal
hearing to determine if the child's continuation in
shelter care or detention was required. The order issued
pursuant to this informal hearing was known as a "shelter
order" or a "detention order" (both referred to by
Pennsylvania as shelter orders). A hearing on the
petition was required to be held within 10 days after the
filing of the petition, although the child could be kept
in shelter care or detention for another 10 days pending
such a hearing if the court determined that certain
criteria were met. The order issued pursuant to this
hearing was a dispositional order.
The shelter orders in DAB No. 1508 did not contain a CTW
determination. However, Pennsylvania argued that, in
some cases, the requirement for a CTW determination was
met by a CTW determination in the dispositional order
which was issued in proceedings initiated within six
months of the child's removal from home. ACF argued that
the shelter orders should have contained a CTW
determination because these orders removed the child from
home. ACF maintained that the plain language of section
472(a)(1) of the Act requires that the court make a CTW
determination when it removes a child from home. The
Board rejected this argument, stating in pertinent part:
Instead, this section requires that the removal be
the "result of" a judicial CTW determination. ACF's
longstanding interpretation of this language is that
a removal will be considered a judicial removal if
the court proceedings leading to the CTW
determination were initiated within six months of
the date the child was last living in the home from
which the child was removed. See New York Dept. of
Social Services, DAB No. 1485, at 6-7 (1994) and
policy issuances discussed there. In most of the
cases in question here, not only were judicial
proceedings initiated within six months of the
child's removal but the dispositional order
allegedly containing a CTW determination was issued
within six months of the child's removal. [footnote
omitted] If the child had been removed from home
without an order, there would be no question that
any CTW determination in the dispositional order was
timely. Pennsylvania should not be penalized simply
because it issued a temporary order authorizing the
child's removal prior to a hearing on the petition
and the issuance of a dispositional order.
DAB No. 1508, at 14. The Board also found that the
shelter orders were an "extra procedural safeguard not
contemplated by section 472(a)" and that this safeguard
provided "some judicial oversight of a child who has been
removed from home on a temporary basis until such time as
there is sufficient information for the court to make a
determination about the child's welfare." Id. at 15. In
addition, the Board rejected ACF's contention that ACF
policy clearly required a CTW determination in shelter
orders.
3. Analysis
ACF argued that DAB No. 1508 was incorrectly decided and
that the Board should not apply the holding in DAB No.
1508 here. ACF argued principally that the ACF policy
which that decision cited was not as broad as the Board
represented, and was inapplicable to children removed
from home by shelter orders or other temporary court
orders. According to ACF, the policy cited by the Board
is based on section 472(a)(4)(B)(ii) of the Act. That
section makes foster care maintenance payments available
for a child who would meet AFDC eligibility requirements
but for his or her removal from the home of a relative if
the child --
had been living with a relative specified in section
406(a) within six months prior to the month in which
. . . such proceedings were initiated, and would
have received [AFDC payments] in or for such month
if in such month he had been living with such a
relative and application therefor had been made.
According to ACF, Congress intended this section to
address the situation where a relative (usually a parent)
who is eligible to receive AFDC on behalf of the child
leaves the child with other relatives or neighbors on an
informal basis. If such a child was subsequently placed
in foster care by a court order containing a CTW
determination, the child would have been ineligible for
IV-E funding under the pre-amendment language because the
child had already been removed from home and was thus not
receiving AFDC payments at the time the court order was
issued. ACF asserted that the quoted provision was
intended to qualify such a child for IV-E as long as
court proceedings leading to the CTW determination were
initiated within six months of the child's physical
removal from home. ACF argued that its policy simply
recognized an exception to, but did not otherwise change,
the requirement in section 472(a)(1) for a judicial CTW
determination in the court order which physically removed
a child from home.
We see nothing in the legislative history cited by ACF
which indicates that Congress was concerned only that
children who were left by their parents with other
relatives or neighbors would be unable to qualify for IV-
E funding. Even if section 472(a)(4)(B)(ii) was enacted
to address this situation, however, that section is
broadly worded and covers other situations as well. The
section literally provides that a child may be eligible
for IV-E funding if the child was living with a parent
(or other specified relative) within six months prior to
the month in which court proceedings were initiated and
would have received AFDC in and for that month if the
child had still been living with the parent in that month
and an application for AFDC had been made. See New York
State Dept. of Social Services, DAB No. 1485, at 10
(1994). As the Board noted in DAB No. 1485, the effect
of this provision --
is to allow a child who had already been removed
from the contrary-to-the-welfare home (and who had
thus already lost AFDC eligibility prior to the
month court proceedings were initiated by virtue of
having been removed from that home) to nevertheless
qualify for foster care payments if the removal
occurred no more than six months prior to the month
court proceedings were initiated.
Id. Moreover, both the 1985 and the 1991 versions of
ACF's "Financial Review Guide for On-Site Reviews of the
Title IV-E Foster Care Program" stated in pertinent part
that "[t]he court order removing the child must have been
initiated, that is, the petition filed, no longer than
six (6) months after the child was removed from the home
of a specified relative." See DAB No. 1485, at 6. There
is nothing on the face of this provision which limits its
applicability to children who are left by their parents
with other relatives or neighbors.
Accordingly, DAB No. 1508 properly found that, under
ACF's policy, a child originally removed from home
without a court order would meet the requirements of
section 472(a)(1) if proceedings leading to a CTW
determination were initiated within six months of the
child's removal. The Board reasoned that, in light of
this policy, a child should not be rendered ineligible
for IV-E funding merely because a temporary order
authorizing the child's removal is issued in the interim.
The Board therefore concluded that, even if the child is
removed from home by a temporary court order, the
requirement for a CTW determination may be met by a CTW
determination in a dispositional order issued in
proceedings initiated within six months of the child's
removal. DAB No. 1508 made clear, moreover, that this
conclusion is consistent with the language of section
472(a)(1) requiring the child's removal as a "result of"
a judicial CTW determination. As the Board noted, this
language does not require that a CTW determination be
made at the time the child is removed from home. Thus,
the Board's holding in DAB No. 1508 is supported by two
statutory provisions, section 472(a)(1) and section
472(a)(4)(B)(ii).
ACF also argued that the Board's holding in DAB No. 1508
violated congressional intent to reduce the number of
children placed in foster care and to keep families
together. ACF noted that the legislative history
stresses the importance of a judicial CTW determination
as a means of assuring that children are not
unnecessarily removed from their parents. (ACF noted in
particular that, immediately prior to the enactment of
title IV-E, the Senate rejected a House proposal to
delete the requirement for judicial CTW determinations,
and that title IV-E strengthened the requirement for a
judicial determination by adding a requirement that the
court determine that reasonable efforts had been made to
prevent the child's removal from home or to return the
child home.) ACF argued that to allow a court to remove
a child from home for a period of up to six months
without making a CTW determination would not prevent
unnecessary removals since, once family ties were broken
for that long, a removal was inevitable.
Contrary to what ACF argued, the holding in DAB No. 1508
does not denigrate the importance of a judicial CTW
determination. That decision recognizes, however, that a
court does not always have sufficient information to make
a CTW determination, particularly where the child has
been removed from home in an emergency situation which
poses a threat to the child's health or safety. The
Board thus found that it makes little sense to require a
CTW determination at the time that a court issues an
order temporarily removing the child from home pending an
investigation of the child's home situation.
Moreover, a requirement for a CTW determination in a
temporary court order is inconsistent with the underlying
purposes of title IV-E. A CTW determination made at this
time might bias the court in favor of a permanent removal
later on, thus frustrating the congressional purpose of
preventing unnecessary removals. In addition, a state
which lacked sufficient information for a court to make a
CTW determination in a temporary order might be
discouraged from removing children from home in emergency
situations (since the children would never be eligible
for IV-E funding). This would also frustrate
congressional intent, since Congress specifically
anticipated the need for "emergency placement in foster
care" in some cases. See DAB No. 1485, at 12 (quoting S.
Rep. No. 336, 96th Cong., 2nd Sess. 16 (1979)).
ACF argued nevertheless that, in Oregon, the court had
enough information to make a CTW determination when it
issued the temporary custody orders. ACF asserted that,
since many of the temporary custody orders included a
reasonable efforts (RE) determination, it was likely that
the court also had enough information to make a CTW
determination. However, a CTW determination is generally
based on comprehensive information about the child's
family situation. To make a RE determination, a court
might merely ascertain, for example, that the state
agency's attempts to provide services to the family were
rejected. Thus, we do not agree that a court which made
a RE determination in a temporary custody order could
necessarily have made a CTW determination. ACF also
cited provisions of the Oregon juvenile code which
require the court to consider at the initial shelter
hearing whether the child's circumstances jeopardize the
welfare of the child and whether the welfare of the child
or others would be immediately endangered. Contrary to
ACF's suggestion, however, the determinations required by
these provisions are not tantamount to a CTW
determination, since they address only whether removal on
an emergency basis is required. Thus, the Board's
conclusion in DAB No. 1508 that it was premature to
require a CTW determination in a shelter order is equally
applicable to the temporary custody orders in question
here.
ACF also claimed that the legislative history of the
foster care provisions of title IV-A made clear that a
judicial CTW determination must precede even a brief
removal of a child from his or her home. In support of
its argument, ACF pointed to a Senate report which stated
in pertinent part:
The foster care provisions in your committee's bill
have been designed, insofar as possible, to
safeguard the rights of the child and his parents or
relatives. No one takes lightly the severance, even
for a brief period, of the ties between a child and
parent, or somebody closely related to him. The
removal of the child from the home would have to be
the result of a judicial determination, made by a
court under the general laws of the State, that
continuation in the home was contrary to the welfare
of the child.
S. Rep. No. 165, 87th Cong., 1st Sess. 7 (1967).
However, while the report indicates that Congress viewed
the separation of a child and parent as a serious matter,
it does not specifically state that a judicial CTW
determination must be made in the case of any separation
between child and parent. Moreover, even if the report
could be read as ACF argued, it is not dispositive since,
as discussed previously, section 472(a)(1) does not on
its face require a CTW determination in a court order
temporarily removing a child from home.
ACF also took issue with the statement in DAB No. 1508
that it is "not clear" that the physical removal of a
child pursuant to a shelter order constitutes a "removal"
within the meaning of section 472(a)(1). DAB No. 1508,
at 13. ACF asserted that the word "removal" as used in
that section means a physical removal, and cited
dictionary definitions of "removal" as "shift of
location" or "change of residence." See ACF Br. dated
2/12/96, at 10-11, quoting the Random House Dictionary of
the English Language, Unabridged, 1973, and Webster's
Third New International Unabridged Dictionary, 1966. ACF
argued that since the children at issue were physically
removed from home pursuant to the shelter orders, those
orders were required by section 472(a)(1) to contain a
CTW determination.
We agree with ACF that a "removal" under section
472(a)(1) must be a physical removal. The Board
specifically addressed this in DAB No. 1485, and
concluded that "the provisions in section 472 that refer
to `removal' clearly contemplate that the child must be
physically removed from home . . . ." DAB No. 1485, at
9. However, the Board also stated in DAB No. 1485 that
"[a] limited exception to the physical removal
requirement for children who have been recently
physically removed from home is consistent with Congress'
recognition . . . that children might need to be
physically removed from home on an emergency basis prior
to a judicial determination." Id. at 16 (emphasis in
original). ACF argued here that the six-month grace
period which ACF recognized in DAB No. 1485 for children
who had been informally left by a parent with other
relatives or neighbors applied only to that situation. 5/
However, as discussed above, DAB No. 1508 properly
concluded that a similar exception to the physical
removal requirement exists for children who are removed
from home by a temporary court order.
ACF also challenged the Board's description in DAB No.
1508 of a temporary court order which lacked a CTW
determination as an "extra procedural safeguard,"
contending that such an order instead denied children the
procedural safeguard which Congress had specifically
provided--a judicial CTW determination prior to removal.
However, ACF's own policy does not require a CTW
determination prior to removal. Instead, it permits a
child removed from home without a court order to be
eligible for IV-E if court proceedings leading to a CTW
determination are initiated within six months of the
child's removal. 6/ In the case of the sample payments
disputed here, there was a CTW determination within that
time frame. There was also judicial oversight of the
children prior to this time when the court issued
temporary orders removing them from home (or ratifying
their emergency removal by the state agency). Since the
statute contemplates the issuance of only a dispositional
order containing a CTW determination, the temporary court
order was indeed an extra procedural safeguard.
ACF argued further that DAB No. 1508 misinterpreted ACYF-
PIQ-82-3, a policy issuance dated January 29, 1982. 7/ The PIQ stated in pertinent
part that --
a temporary shelter care order that meets the
requirements of a "judicial determination" would
permit the authorization of FFP as of the date of
the shelter care order, provided all other
eligibility requirements are met.
The Board rejected ACF's argument that it was clear from
the PIQ that a CTW determination was required in shelter
orders, concluding instead that the PIQ "could reasonably
be read to mean that temporary shelter care orders need
not contain a CTW determination." DAB No. 1508, at 16
(emphasis in original). In effect, the Board concluded
that the PIQ said only that a temporary shelter order may
meet the requirements for a CTW determination, not that
it must meet those requirements. ACF argued again here
that the PIQ meant that a CTW determination must be
contained in the initial court order, whether it is a
temporary order or a dispositional order. However, this
reading is simply not apparent on the face of the PIQ.
Accordingly, ACF could not reasonably rely on the PIQ as
giving the states notice of its interpretation.
ACF also argued that this case is distinguishable from
DAB No. 1508 on its facts, since, unlike the shelter
orders in DAB No. 1508, several of the temporary custody
orders involved here were not time-limited. ACF argued
that a CTW determination was required in the latter
orders because the "parental bond" could be irreparably
injured if the child were removed from home for more than
the 10 to 20 days that the shelter orders in DAB No. 1508
were in effect. ACF Br. dated 2/12/96, at 26.
ACF's argument is predicated on a misunderstanding of
Oregon law. ACF relied on the absence of any time limit
in ORS 419.577(1)(e), which states that a court may order
an authorized person who has taken the child into
temporary custody to "hold, retain, or place the child in
detention or shelter care subject to further order." 8/
However, ORS 419.482(2)(b) provides that if any person
informs the court that a child is or appears to be within
its jurisdiction, the court may direct that a petition be
filed. ORS 419.486 provides that a summons must be
issued within 60 days after the petition is filed, and a
hearing on the petition (i.e., a dispositional hearing)
scheduled within a reasonable time not less than 24 hours
later. This clearly contemplates that a dispositional
hearing will be held no later than approximately 61 days
of the filing of the petition. Given the limited time
allowed between the filing of the petition and the
dispositional hearing, it seems reasonable to read ORS
419.482(2)(b) as requiring that the petition be filed
without delay. (Moreover, some of the temporary orders
in question here may have been issued after a petition
was filed, pursuant to ORS 419.482(3), in which case a
dispositional hearing was required within approximately
61 days of the issuance of the order.) Thus, even if the
temporary custody orders issued pursuant to ORS
419.577(1)(e) were not on their face limited in duration,
they were clearly intended to be temporary orders under
Oregon law. Accordingly, we conclude that there is no
basis for distinguishing any of the temporary custody
orders from the shelter orders at issue in DAB No. 1508.
9/
We therefore conclude that DAB No. 1508 was correctly
decided and that section 472(a)(1) did not require a CTW
determination in the temporary custody orders at issue
here but was satisfied by a CTW determination in a
subsequent dispositional order issued in proceedings
initiated within six months of the child's removal.
Sample No. 184
ACF found that sample no. 184 was ineligible for IV-E
funding because there was no judicial determination that
reasonable efforts were made to prevent the child's
removal from home, as required by section 472(a)(1).
This section requires a judicial determination that
reasonable efforts have been made to prevent the need for
the child's removal "from his home" or to make it
possible for the child to "return home." Oregon
contended that a nunc pro tunc (NPT) order issued in
April 1988 which related to a March 4, 1988 order
contained the required reasonable efforts (RE)
determination. The NPT order stated --
that there were no reasonable efforts made by the
Children's Services Division of the State of Oregon
to maintain the Child in his father's home, because
the said agency had no previous contact with the
father.
ACF Br. dated 2/12/96, App. B, 5th page. ACF took the
position that this did not constitute a RE determination
because the order should have referred to the child's
stepbrother rather than the child's father. The record
shows that the child, whose mother had died, was
eventually abandoned by his father. The child then went
to live with his stepbrother. The stepbrother
subsequently left the child with a friend and shortly
thereafter notified both the friend and the state agency
that he was not returning. 10/ See ACF Br. dated
2/12/96, App. B, 8th page.
We need not decide whether, as ACF argued, the court was
required to make a RE determination with respect to the
stepbrother and not the father since we conclude that the
determination with respect to the father was deficient on
its face. Under ACF policy, a determination by the court
that the lack of efforts to prevent the child's removal
from home was reasonable due to an emergency is
acceptable as a RE determination. See Illinois Dept. of
children and Family Services, DAB No. 1564, at 6 (1996),
citing ACYF-PA-84-1. Here, the court found that there
were no reasonable efforts to maintain the child in his
father's home, i.e., to prevent removal. However, there
is no indication that an emergency existed which
precluded the state agency from making reasonable efforts
to prevent the child's removal. Instead, the court
merely found that the state agency had had no previous
contact with the father. Accordingly, the court's
determination did not fall within the scope of ACF's
policy.
Even if it was not possible for the state agency to
contact the father, the court could have made a RE
determination with respect to the stepbrother, who had
advised the state agency that he did not want to continue
to care for the child. ACF asserted, and Oregon did not
dispute, that the child qualified for AFDC benefits based
on the child's residence with the stepbrother. The
requirement for a judicial RE determination can
reasonably be read to refer to reasonable efforts to
prevent removal from, or to return the child to, any home
in which the child qualified for AFDC.
Conclusion
For the foregoing reasons, we conclude that ACF erred in
determining that 15 of the 16 sample payments in dispute
were ineligible for IV-E funding, but properly determined
that the remaining sample payment, sample no. 184, was
ineligible. Accordingly, we reverse the disallowance
with respect to all of the disputed sample payments
except sample no. 184, and uphold the disallowance with
respect to that sample payment.
__________________________
Judith A. Ballard
__________________________
Norval D. (John) Settle
__________________________
Donald F. Garrett
Presiding Board Member
1.
The report on ACF's review was dated February 9, 1994.
However, no disallowance was taken until April 17, 1995
due to the moratorium imposed by the Omnibus Budget
Reconciliation Act of 1993. After Oregon appealed to the
Board, proceedings were stayed until November 1995 to
permit ACF to review the sample payments in light of a
Board decision issued after the review report was issued.
2.
Our holding does not mean that the issuance of a
temporary court order which lacks a CTW determination
renders a child eligible for IV-E funding, but rather
that the issuance of such an order does not preclude IV-E
eligibility based on a subsequent dispositional order
which contains a CTW determination. See DAB No. 1508, at
15, n. 10.
3.
All references are to the Oregon juvenile code prior to
its amendment in 1993 (at Appendix A to ACF's Br. dated
2/12/96).
4.
The parties did not provide the Board with copies of
court orders or other records for any of the 15 sample
payments in question. Thus, this statement of the facts
is based on undisputed assertions in the parties' briefs.
5.
The Board rejected New York's argument in DAB No. 1485
that a six-month grace period was too limited.
6.
ACF contended that, if a child is removed from home
without a court order in an emergency situation, due
process requires that court proceedings be initiated
within "a very short period of time" (presumably much
less than six months). ACF reply br. dated 4/22/96, at
4, 6. However, ACF did not deny that it would pay FFP if
a CTW determination were made pursuant to court
proceedings initiated within six months of the child's
removal, notwithstanding any due process concerns.
7.
ACYF, the Administration for Children, Youth, and
Families, was part of the Office of Human Development
Services. Due to organization changes in the Department
of Health and Human Services, ACYF became part of ACF in
April 1991.
8.
ACF also alleged that Oregon admitted that its juvenile
code did not limit the amount of time a child could be
held in temporary custody prior to a dispositional court
hearing. However, Oregon admitted only that the
temporary custody orders were not on their face limited
in duration. See Oregon Br. dated 12/22/95 at 6.
9.
We therefore need not reach the issue of whether a CTW
determination must be included in orders which are
neither time-limited on their face nor limited in
duration pursuant to statute.
10.
There is no indication in the record as to the length
of time the child lived with his stepbrother.