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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT: Mississippi Dept. of Human Services

DATE: December 30, 2003
         

 


 

Docket No. A-03-61
Decision No. 1903
DECISION
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DECISION

The Mississippi Department of Human Services (Mississippi) appealed the determination of the Administration for Children and Families (ACF) dated April 15, 2003 disallowing $21,248 in federal financial participation (FFP) claimed for foster care maintenance payments and administrative costs under title IV-E of the Social Security Act (Act). The disallowance was based on a primary review of maintenance payments claimed for the period April 1 through September 30, 2002. The purpose of the review was to determine whether the payments were made on behalf of eligible children to eligible foster care providers. Following its review of additional documentation submitted with Mississippi's appeal, ACF reduced the disallowance to $8,133. Mississippi appealed the amount that was disallowed as pertaining to three sample cases.

For the reasons discussed in detail below, we reverse the disallowance with respect to one contested sample case and uphold the disallowance with respect to the other two contested sample cases as well as the eight sample cases that Mississippi did not contest.

Legal and Factual Background

Title IV-E was originally enacted as part of the Adoption Assistance and Child Welfare Act of 1980, Public Law No. 96-272. Under section 472(a) of title IV-E, as amended by the Adoption and Safe Families Act of 1997 (ASFA), Public Law No. 105-89, federal matching of state foster care maintenance payments is available for a child in foster care who would have been eligible for Aid to Families with Dependent Children (AFDC) under title IV-A as in effect as of June 1, 1995 -

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 welfare of such child and (effective October 1, 1983) that reasonable efforts of the type described in section 471(a)(15) for a child have been made[.]

Under section 471(a)(15), a state plan under title IV-E must provide in relevant part that-

(B) except as provided in subparagraph (D), reasonable efforts shall be made to preserve and reunify families-

(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and
(ii) to make it possible for a child to safely return to the child's home;

(C) if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child[.] (1)

Revised regulations implementing ASFA were effective March 27, 2000. 65 Fed. Reg. 4020 (Jan. 25, 2000). Section 1356.21 of 45 C.F.R. states in pertinent part:

(b) Reasonable efforts. The State must make reasonable efforts to maintain the family unit and prevent the unnecessary removal of a child from his/her home, as long as the child's safety is assured; to effect the safe reunification of the child and family (if temporary out-of-home placement is necessary to ensure the immediate safety of the child); and to make and finalize alternate permanency plans in a timely manner when reunification is not appropriate or possible. In order to satisfy the "reasonable efforts" requirements of section 471(a)(15) . . . , the State must meet the requirements of paragraphs (b) and (d) of this section. . . .

(1) Judicial determination of reasonable efforts to prevent a child's removal from the home.
(i) When a child is removed from his/her home, the judicial determination as to whether reasonable efforts were made, or were not required to prevent the removal, in accordance with paragraph (b)(3) of this section, must be made no later than 60 days from the date the child is removed from the home . . . .

* * * * *

(2) Judicial determination of reasonable efforts to finalize a permanency plan
(i) The State agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement in another planned permanent living arrangement) within twelve months of the date the child is considered to have entered foster care in accordance with the definition at § 1355.20 of this part, and at least once every twelve months thereafter while the child is in foster care.

* * * * *

(4) Concurrent planning. Reasonable efforts to finalize an alternate permanency plan may be made concurrently with reasonable efforts to reunify the child and family.

* * * * *

(c) Contrary to the welfare determination. Under section 472(a)(1) of the Act, the child's removal from the home must have been the result of a judicial determination (unless the child was removed pursuant to a voluntary placement agreement) to the effect that continuation of residence in the home would be contrary to the welfare, or that placement would be in the best interest, of the child. The contrary to the welfare determination must be made in the first court ruling that sanctions (even temporarily) the removal of a child from home. . . .

(d) Documentation of judicial determinations.
The judicial determinations regarding contrary to the welfare, reasonable efforts to prevent removal, and reasonable efforts to finalize the permanency plan in effect, including judicial determinations that reasonable efforts are not required, must be explicitly documented and must be made on a case-by-case basis and so stated in the court order.
(1) If the reasonable efforts and contrary to the welfare judicial determinations are not included as required in the court orders identified in paragraphs (b) and (c) of this section, a transcript of the court proceedings is the only other documentation that will be accepted to verify that these required determinations have been made.

* * * * *

The IV-E regulations set out a process for review of state compliance with the IV-E child and provider eligibility requirements. An initial primary review of a sample of 80 cases is conducted, and if the findings show substantial compliance, no further review is conducted for another three years. 45 C.F.R. § 1356.71(a)(3). Substantial compliance is defined as eight or less ineligible cases in the initial primary review and four or less in a subsequent primary review. Id. A state found to be out of substantial compliance must submit a program improvement plan and, after completion of the plan, is subject to a secondary review of a larger sample of cases. Id.

ACF determined that there were 13 "error cases" in the 80 cases sampled during a primary review of Mississippi's IV-E program. Mississippi initially appealed ACF's determination with respect to five of these sample cases. Based on additional documentation submitted with Mississippi's appeal, ACF reversed its findings in two of the five disputed cases and reduced the amount of the disallowance to $8,133. Letter dated 6/26/03. (2) Mississippi continued to dispute ACF's determination in the three remaining sample cases. ACF found that in two of these cases, there was no judicial determination that reasonable efforts to finalize the child's permanency plan had been made. ACF found that in the third case, there was no judicial determination that continuation in the home was contrary to the child's welfare or that reasonable efforts to prevent removal had been made. Below, we discuss each of these sample cases in turn.

ANALYSIS
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Sample case 78- eligible

At issue here is the requirement in section 1356.21(b)(2)(i) that the State agency "obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that is in effect." This section further provides that the judicial determination must be made "within twelve months of the date the child is considered to have entered foster care in accordance with the definition at § 1355.20 . . ."

Mississippi argued that a February 5, 2002 "Judicial Dispositional Review Order" satisfied the requirement in section 1356.21(b)(2)(i). Mississippi pointed to language in the order that "there is good cause for continuation of said child in foster care in the custody of and under the supervision of the Department of Human Services' plan of mother/relative placement." Mississippi submission dated 9/12/03, Attachment (Att.) A, at 1st and 5th unnumbered pages. Mississippi thus appeared to take the position that the court determined that reasonable efforts were made to finalize the child's permanency plan of reunifying her with her mother. ACF disagreed that the cited language constituted a finding of reasonable efforts to finalize the child's permanency plan. ACF argued that it is not even clear from the order what the permanency plan for the child was, although it speculated that the plan might have contemplated reunification with the mother, with permanent placement with a relative as a "fall-back." ACF Br. at 8-9.

We agree with ACF that the February 5, 2002 order is not adequate to satisfy the requirements of section 1356.21(b)(2)(i). Even if the plan of mother/relative placement mentioned in the order is a permanency plan, the order nowhere indicates a determination that reasonable efforts to finalize this plan had been made.

Mississippi also submitted with its appeal a copy of an August 14, 2002 "Permanency Order" for this child. ACF in effect took the position that the order would be acceptable as a reasonable efforts determination but for its timing. ACF Br. at 9-10. According to ACF, the 12-month period within which section 1356.21(b)(2)(i) requires this judicial determination to be made began on June 15, 2001 when the court issued an Order for Temporary Custody authorizing the child's removal from the home and placing her in the county's custody. Id. at 7-8. (3) We disagree. The salient language is "within twelve months of the date the child is considered to have entered foster care in accordance with the definition at § 1355.20 . . . ." Section 1355.20 provides in relevant part:

Date a child is considered to have entered foster care means the earlier of: The date of the first judicial finding that the child has been subjected to child abuse or neglect; or the date that is 60 calendar days after the date on which the child is removed from the home pursuant to § 1356.21(k) [i.e., pursuant to a judicial determination].

The June 15, 2001 order found that the county had alleged that the child had been neglected or abused, that "there is probable cause" established by the county, and that "said child may be neglected or abused . . . ." Mississippi submission dated 9/12/03, Att. A, 2nd unnumbered page (emphasis added). Since this was not a "finding" that the child "has been subjected" to neglect or abuse within the meaning of the regulation, the 12-month period did not start with the date of this order. Instead, since the order constituted a judicial determination removing the child from home, the 12-month period started 60 days from the date of the order, or August 14, 2001. Although the 12-month period therefore ended August 13, 2002, there was no gap in eligibility since the order finding reasonable efforts to finalize the child's permanency plan was issued the next day.

Accordingly, we conclude that, contrary to what ACF found, sample case 78 was eligible for IV-E payments.

Sample case 72-ineligible

This case too involves the requirement in section 1356.21(b)(2)(i) for a judicial determination that reasonable efforts were made to finalize the permanency plan. Mississippi stated on appeal:

The child was place[d] in custody of the Mississippi Department of Human Services on April 11, 2001. The hearing held on June 28, 2001, ordered that a legal risk adoption be made and the agency proceed with termination of parental rights of the parents. On July 31, 2002, the termination of parental rights of the mother and putative father was executed.

Mississippi submission dated 9/12/03, Att. B, 1st page (unnumbered).

None of the documents to which Mississippi referred contain the requisite judicial determination. The April 11, 2001 order requires that the child be "placed temporarily with the [county Department of Human Services] for appropriate placement . . . ." Mississippi submission dated 9/12/03, Att. B, 2nd unnumbered page. There is no mention of a permanency plan. The order issued pursuant to the June 28, 2001 hearing continues the child's temporary placement and directs the county to "make all reasonable efforts to secure a legal risk adoptive home" for the child. Id. at 4th unnumbered page. There is no indication that, at the time of the order, the county had made any such efforts, however. Two documents titled "Surrender of Parental Rights and Consent to Adoption to the Mississippi Department of Human Services" were each signed by a parent--not by a judge--on July 31, 2002, more than twelve months after the child entered foster care. Mississippi submission dated 5/14/03, enclosures, 30th and 31st unnumbered pages. Accordingly, none of these documents satisfy the requirements of section 1356.21(b)(2)(i).

Mississippi also provided copies of, but did not specifically address, an April 16, 2002 Order Appointing Guardian Ad Litem, a July 31, 2002 Appearance and Report of Guardian Ad Litem, a February 6, 2003 Order for Payment of Guardian Ad Litem Fee, several documents prepared by the State agency concerning the termination of parental rights, and an April 29, 2003 Decree of Adoption. Mississippi submission dated 5/14/03, enclosures; Mississippi submission dated 9/12/03, Att. B. Once the Decree of Adoption was issued, a judicial determination that reasonable efforts had been made to finalize the permanency plan was unnecessary; however, the Decree is dated more than twelve months after the court order placing the child in foster care. To the extent that the remaining documents were issued by the court, there is nothing in their language that indicates that the requisite judicial determination was made, and in any event, they are not dated within twelve months after the child was considered to have entered foster care.

Accordingly, we agree with ACF's finding that sample case 72 was not eligible for IV-E payments.

Sample case 43-ineligible

ACF initially found this sample case ineligible on the ground that there was no judicial determination "to the effect that continuation of residence in the home would be contrary to the welfare, or that placement would be in the best interest, of the child," as required by section 1356.21(c). Disallowance letter dated 4/15/03, attached chart of ineligibility reasons. ACF later stated that this case "further appears not to have a finding of reasonable efforts to prevent removal." ACF Br. at 11. (4)

Mississippi stated on appeal:

The court order dated August 21, 2000, includes sufficient language to satisfy the requirements for "Contrary to the Welfare" and "Reasonable Efforts". Under 1356.21, the wording of the court order must be explicit but does not have to follow the exact wording of the federal statu[t]e.

In this case, the court indicated there was no other alternative than to place the child in the agency's custody. The mother was mentally unstable, therefore, reasonable efforts were not made to prevent removal.

Mississippi submission dated 9/12/03, Att. C, 1st page (unnumbered).

The court order in question removed the child's paternal aunt as the child's custodian and appointed the county Department of Human Services as the child's temporary custodian. The order states that the court was advised that the paternal aunt "states she is unable to care for the [physical, social, medical and educational] needs of [the child and her sibling] and has brought them back . . . and delivered them to the Department of Human Services office . . . and surrendered her custody . . . ." Mississippi submission dated 9/12/03, Att. C, 2nd unnumbered page. The order further states that it is "now necessary to appoint said Department as custodian, there being no other alternative available to the Court at this time." The order also indicates that the child's aunt had earlier been given custody because the two children "were in danger of neglect by reason of their mother's mental instability." Id.

ACF argued that Mississippi improperly relied on the court's statement about the mother's situation as satisfying the judicial determination requirements. According to ACF, since the order removed the child from the home of her aunt, the order should have contained a determination that continued residence in the aunt's home would be contrary to the child's welfare (or that placement would be in the child's best interest) and that there had been reasonable efforts to prevent the child's removal from her aunt's home. In ACF's view, the statement that the aunt was "unable" to care for the child's needs did not satisfy either requirement.

We need not reach the question of whether the contrary to the welfare and reasonable efforts determinations had to be made with reference to the current removal from the aunt's home rather than the earlier removal from the mother's home. In either case, the order did not contain the requisite reasonable efforts determination. While Mississippi is correct that a court order need not track the language of the statute that requires this determination, Mississippi did not point to any language in the August 21, 2000 court order that indicates that reasonable efforts were made by the State to prevent the child's removal from either home. (5) In addition, if the judicial determinations were required to be made with reference to the child's removal from the mother's home, the court's remarking on the earlier determination that the child was in danger of neglect by reason of the mother's mental instability does not constitute a finding that continuation in the home was contrary to the child's welfare on August 21, 2000 when the order was issued. (6)

Accordingly, we agree with ACF's finding that sample case 43 was not eligible for IV-E payments.

Conclusion

For the foregoing reasons, we reverse the disallowance with respect to sample case 78 and uphold the disallowance pertaining to the remaining ten sample cases. Since more than eight sample cases remain ineligible, our decision does not affect ACF's finding that Mississippi was not in substantial compliance with the IV-E eligibility requirements.

JUDGE
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Cecilia Sparks Ford

Donald F. Garrett

Judith A. Ballard
Presiding Board Member

FOOTNOTES
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1. Subparagraph (D) provides that reasonable efforts to prevent or eliminate the need to remove the child from home or to make it possible for the child to safely return home "shall not be required to be made with respect to a parent" who has been determined by a court to have "subjected the child to aggravated circumstances" or to have committed certain crimes, or whose parental rights to a sibling have been involuntarily terminated.

2. In calculating the revised disallowance, ACF also determined that it should not have disallowed administrative costs associated with children who were placed in unlicensed foster family homes.

3. ACF stated that the child entered foster care when Mississippi determined the child's IV-E eligibility, which ACF asserted was at the time this order was issued. This view is not consistent with section 1355.20, which specifically states that the definition of the "date a child is considered to have entered foster care" "has no relationship to establishing initial IV-E eligibility."

4. The Board has held that the federal agency may raise new grounds for a disallowance after a disallowance letter is issued as long as the appellant is afforded an opportunity to respond . See, e.g., Iowa Dept. of Human Services, DAB No. 1874, at n.2 (2003); New York State Dept. of Health, DAB No. 1867, at n.10 (2003). Mississippi had ample opportunity to address the basis for the disallowance as clarified by ACF. The briefing schedule set by the Board included an opportunity for Mississippi to reply to the brief in which ACF identified this additional ground for finding sample case 43 ineligible. Mississippi did not file a reply, however. In any event, Mississippi referred to the requirement for a reasonable efforts determination in its appeal.

5. In cases governed by the prior IV-E regulations, the Board has stated that the absence of express language in the court order does not preclude a state from establishing that the court in fact made the requisite determination. See e.g., New Jersey Dept. of Human Services, DAB No. 1797 (2001), citing Pennsylvania Dept. of Public Welfare, DAB No. 1508 (1995). Section 1356.21(d) of the amended regulations specifies some limitations on how judicial determinations may be documented; however, nothing in that section indicates that the court order must track the exact language of the statute or regulation.

6. Section 1356.21(b)(2) provides that the determination that reasonable efforts were made to prevent a child's removal from home "must be made no later than 60 days from the date the child is removed from the home . . . ." Thus, a later court order might have satisfied the requirement for this judicial determination. The August 21, 2000 court order was the only court order Mississippi provided for this child, however.

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