SUBJECT: Iowa Department of Human Services

DECISION

The Iowa Department of Human Services (Iowa) appealed in part the determination of the Administration for Children and Families (ACF) dated October 1, 2004 disallowing a total of $75,834 of federal funds claimed by Iowa for foster care maintenance payments and administrative costs under title IV-E of the Social Security Act. ACF's determination was based on a Secondary Foster Care Eligibility Review of 150 sample cases in which Iowa made payments during the period October 1, 2003 through March 31, 2004. The purpose of the review was to determine whether the payments were made on behalf of eligible children to eligible foster care providers. ACF found that seven sample cases were "error cases." Iowa disputed ACF's determination that it failed to meet the regulatory requirements for 1) a judicial determination that reasonable efforts to prevent the child's removal from home were made (Sample Case #130) and 2) a judicial determination that reasonable efforts to finalize the child's permanency plan were made (Sample Cases #51 and #85). The amount of the disputed maintenance payments and associated administrative costs is $38,301.

For the reasons discussed below, we reverse the disallowance with respect to two of the three disputed error cases, which we conclude were not error cases. We uphold the disallowance with respect to the remaining disputed case, which we conclude was an error case.

IV-E Statute and Relevant Regulations

Title iV-E was originally enacted as part of the Adoption Assistance and Child Welfare Act of 1980, Public Law No. 96-272. ⁽¹⁾ Under section 472(a) of title IV-E of the Social Security Act (Act), 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 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 occurred pursuant to a voluntary placement agreement entered into by the child's parent or legal guardian, or 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[.]

Section 471(a)(15)(B) of the Act requires that a state plan under title IV-E must (subject to certain exceptions in subparagraph (D) that are not relevant here) provide that "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[.]

Section 471(a)(15)(C) of the Act requires that a State plan must provide that-

[i]f 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[.]

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:

(a) Statutory and regulatory requirements of the Federal foster care program. To implement the foster care maintenance payments program provisions of the title IV-E State plan and to be eligible to receive Federal financial participation (FFP) for foster care maintenance payments under this part, a State must meet the requirements of this section . . . .
(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) (as implemented through section 472(a)(1) of the Act), 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, . . . must be made no later than 60 days from the date the child is removed from the home . . . .
(ii) If the determination concerning reasonable efforts to prevent the removal is not made as specified in paragraph (b)(1)(i) of this section, the child is not eligible under the title IV-E foster care maintenance payments program for the duration of that stay in foster care.
(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 . . . within twelve months of the date the child is considered to have entered foster care in accordance with the definition at § 1355.20 . . . and at least once every twelve months thereafter . . . .
(ii) If such a judicial determination regarding reasonable efforts to finalize a permanency plan is not made in accordance with the schedule prescribed in paragraph (b)(2)(i) of this section, the child becomes ineligible under title IV-E at the end of the month in which the judicial determination was required to have been made, and remains ineligible until such a determination is made.

* * * * * * *

(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 preamble to the notice of proposed rulemaking for the revised regulations explained that ACF would no longer accept certain forms of documentation as evidence that the required judicial determinations were made. In particular, ACF stated that it would not accept affidavits and nunc pro tunc orders, which were created months or years after the fact, stating that they cannot be considered as reliable evidence of prior compliance with federal requirements given the large number of cases that go before the courts. ⁽²⁾ ACF also stated that it would not accept a reference in a court order to a State law since this does not ensure that the circumstances of each child are reviewed individually. ACF stated that instead-

[c]onsistent with language in section 472(a)(1) of the Act, in paragraph (d)(1) we propose that the judicial determinations regarding 'contrary to the welfare' and 'reasonable efforts' be stated specifically in the court orders identified in §1356.21, paragraphs (b) and (c)[,] and must include the evidentiary basis for that determination. The judicial determinations themselves need not necessarily include the exact terms 'contrary to the welfare' and 'reasonable efforts', but must convey that the court has determined that reasonable efforts have been made or are/were not required (as described in section 471(a)(15) of the Act), and that it would be contrary to the welfare of a child to remain at home. A transcript of the court proceedings which verifies that the court considered the facts of the case and made a finding with respect to the reasonable efforts and contrary to the welfare requirements is the only other form of documentation that will be accepted.

63 Fed. Reg. 50,058, 50,075 (Sept. 18, 1998). The preamble to the final rule stated that no changes had been made in proposed section 1356.71(d), which it described as "requiring judicial determinations to be explicit, made on a case-by-case basis, and so stated in the court order." 65 Fed. Reg. 4020, 4055. The preamble nevertheless clarified the policy of requiring "individualized judicial determinations" as follows:\

Our purpose for proposing this policy can be found in the legislative history of the Federal foster care program. The Senate report on the bill characterized the required judicial determinations as "* * * important safeguard(s) against inappropriate agency action * * *" and made clear that such requirements were not to become "* * * a mere pro forma exercise in paper shuffling to obtain Federal funding * * *" (S. Rept. No. 336, 95^th Cong., 2d Sess. 16 (1980)). We concluded, based on our review of State[s'] documentation of judicial determinations over the past years, that, in many instances, these important safeguards had become precisely what Congress was concerned that they not become.
Our primary concern is that judicial determinations be made on a case-by-case basis and it was not our intent to create a policy that was overly prescriptive and burdensome. States have a great deal of flexibility in satisfying this requirement. The suggestion that the court order reference the facts of a court report, related psychiatric or psycho-social report, or sustained petition as a mechanism for demonstrating that judicial determinations are made on a case-by-case basis is an excellent one and would satisfy this requirement. If the State can demonstrate that such determinations are made on a case-by-case basis through a checklist then that is acceptable also.

Id. at 4056. The preamble also responded as follows to a commenter who "was opposed to our requiring specific judicial determinations" and "felt we should be able to cull out the fact that the court made the appropriate determinations by reading the hearing record":

While we can allow some flexibility in this area, it is a statutory requirement that the specific judicial determinations regarding reasonable efforts and contrary to the welfare be explicit in court orders. Section 1356.21(d)(1) of the regulation states that we will accept transcripts of the court proceedings if the necessary judicial determinations are not explicit in the court orders.

Id.

Section 1356.71 of the revised regulations describes a process for "Federal review of the eligibility of children in foster care and the eligibility of foster care providers in title IV-E programs." Pursuant to this regulation, ACF conducts primary reviews every three years based on a randomly drawn sample of 80 cases. ACF reviews these cases to determine whether title IV-E payments were made (1) on behalf of eligible children and (2) to eligible foster family homes and child care institutions. If a state's ineligible cases in the sample do not exceed eight in the "initial primary review," or four in a "subsequent primary review," a state's program is deemed in "substantial compliance," and the state is not subject to another primary review for three years. However, a disallowance is assessed for ineligible payments and administrative costs associated with specific error cases found in the sample. If a state's program is deemed not in substantial compliance, a program improvement plan is required, and the state is thereafter subject to a secondary review of 150 randomly drawn cases. If both case and dollar error rates in this secondary review exceed 10 percent, a disallowance is taken, based on an extrapolation from the sample to the universe of claims paid. If either the case or dollar error rate does not exceed 10 percent, a disallowance is taken "on the basis of payments associated with ineligible cases for the entire period of time the case has been determined to be ineligible." 45 C.F.R. § 1356.71(j)(2).

We note other relevant provisions of the regulations later in this decision.

ACF found that seven of the 150 cases reviewed were error cases. Since neither the case nor dollar error rate exceeded 10 percent, ACF disallowed only the payments and administrative costs associated with the error cases. Iowa disputed ACF's findings that three sample cases were error cases. The amounts in dispute for these sample cases (in the order they are addressed in the parties' briefs) are as follows:

• Sample Case #130: maintenance payments and administrative costs of $4,430.43 and $2,311, respectively, for the period 10/1/03 - 3/31/04.
  

• Sample Case #85: maintenance payments and administrative costs of $21,268.68 and $8,308, respectively, for the period 6/30/01 - 3/31/04.
  

• Sample Case #51: maintenance payments and administrative costs of $1,212.61 and $770, respectively, for the period 10/30/03 - 3/31/04.
  

Iowa Ex. 85, at 4-5.

We discuss each of the three sample cases below.

Sample Case #130 (T.C.)

ACF found this case ineligible on the ground that Iowa failed to meet the requirements for a judicial determination that reasonable efforts were made, or were not required, to prevent the child's removal from home. ⁽³⁾

As evidence that it met the requirements for this reasonable efforts determination, Iowa submitted a court order dated September 3, 2003. Iowa Ex. 8, at 1. ACF takes the position that this order does not satisfy the requirement for a judicial determination of reasonable efforts because it was issued more than 60 days from the date of the court order removing T.C. from home. ACF Br. at 5, citing 45 C.F.R. § 1356.21(b)(1)(i). The removal order was dated June 2, 2003. Iowa Ex. 5, at 1.

Section 1356.21(b)(1)(i) states that the reasonable efforts determination "must be made no later than 60 days from the date the child is removed from the home pursuant to paragraph (k)(1)(ii) of this section." Paragraph (k)(1)(ii) states that a removal from the home must occur pursuant to "[a] judicial order for a physical or constructive removal of the child from the home . . . ." In addition, paragraph (k)(3) states that "[a] child is considered constructively removed on the date of the first judicial order removing custody. . . from the appropriate specified relative . . . ." Iowa does not dispute that the June 2, 2003 order was an order for T.C.'s constructive removal from home within the meaning of this section.

Iowa argues, however, that the requirement for a reasonable efforts determination within 60 days of the removal order "is not absolute." Iowa Br. at 5. According to Iowa, the September 3, 2003 order was timely because T.C. ran away from home prior to the issuance of the removal order on June 2 and was not located and brought into custody until "late August." Iowa Br. at 4, citing Iowa Ex. 7, at 2. Iowa claims that this situation is analogous to that described in section 8.3C.2a of the Child Welfare Policy Manual (at Iowa Exhibit 87). That section states that if a child is initially placed in a facility that is not a foster family home or child-care institution, such as a detention facility or psychiatric hospital, for more than 60 days, the date the child is considered to have entered foster care is the day the child is placed in a foster family home or child-care institution. Iowa argues that, similarly, "T.C. remained in a setting outside foster care . . . for more than 60 days following the removal court order," so that T.C. should be considered to have entered foster care when he was brought into custody in late August. Iowa Br. at 5. Iowa also argues that "any court would be acting in contravention of Title IV-E to modify the child's custody in an ex parte proceeding. The State was powerless to act on T.C.'s behalf until he was located . . . ." Id. at 6. ⁽⁴⁾

Iowa's reliance on the Child Welfare Policy Manual is misplaced, however. In the situation described in the Manual, the court has determined that the child needs care or services other than foster care for a period of more than 60 days. The purpose of the reasonable efforts determination is to ensure that the child is not unnecessarily placed in foster care. In the situation described in the Manual, the child would not be in foster care for at least 60 days after the date of his removal from home; thus, it makes sense to toll the beginning of the 60 days for making a reasonable efforts determination until the child has been placed in foster care. In T.C.'s case, however, Iowa does not deny that the court ordered T.C. removed from home and placed directly in foster care. Thus, there was no reason to toll the period for making the reasonable efforts determination.

Moreover, we are not persuaded that the court could not have issued a reasonable efforts determination in T.C.'s absence. In response to ACF's assertion that T.C.'s "attorney was present at the removal hearing and could have represented T.C.'s interests regarding the issue of whether reasonable efforts were made to prevent his removal," Iowa does not repeat its assertion that this would violate title IV-E, but simply states that "[a] substantive ex parte hearing would be highly unlikely in this jurisdiction." ACF Br. at 7; Iowa Reply Br. at 3. Iowa failed to provide any evidence that what ACF suggests would have been contrary to state law, however.

Accordingly, we conclude that Iowa has shown no basis for reversing ACF's finding that Sample Case #130 was an error case.

Sample Case #51 (Z.F.)

ACF found that this case was ineligible on the ground that it lacked a timely judicial determination of reasonable efforts to finalize the child's permanency plan. There was a court order dated June 14, 2000 removing Z.F. from home. Iowa Ex. 12. ACF found that no reasonable efforts determination had been made within 12 months of that order or at any time thereafter.

Iowa takes the position that since the review period in this case was October 1, 2003 through March 31, 2004, the reviewers could not have counted this sample case as an "error case" based on the lack of a reasonable efforts determination prior to October 2003. Iowa asserts that the Title IV-E Foster Care Eligibility On-site Review Instrument and Instructions (Review Instrument) requires only that there be a reasonable efforts determination during the review period. Iowa Br. at 10, citing Iowa Ex. 1, at 3. ⁽⁵⁾ According to Iowa, a court order dated January 14, 2004 satisfied the requirements for a reasonable efforts determination. Iowa argues in the alternative that reasonable efforts determinations were made in earlier orders as well, including a July 15, 2003 order.

Iowa's reliance on the Review Instrument is misplaced. A IV-E eligibility review is based on a sample of cases for which there was a title IV-E foster care maintenance payment during the six-month review period. See 45 C.F.R. § 1356.71(c)(1); Title IV-E Foster Care Eligibility Review Guide, Chapter 1, at 3 ("Sampling Guidance")(http://www.acf.hhs.gov/programs/cb/laws/im/im0111a1.pdf). The language in the Review Instrument to which Iowa refers instructs reviewers to find an "error case" when a sample payment "is for a period (1) in which an eligibility criterion related to the child's entry into foster care is not met (e.g., contrary to the welfare judicial determination, AFDC initial eligibility) or (2) in which an eligibility requirement is not met during the PUR [period under review]." The latter situation clearly exists where there is a continuing failure to meet the requirement in section 1356.21(b)(2) since that section provides that if a reasonable efforts determination is not made within 12 months of the date the child is considered to have entered foster care and at least once every 12 months thereafter, "the child becomes ineligible . . . at the end of the month in which the judicial determination was required to have been made, and remains ineligible until such a determination is made." Moreover, the Review Instrument specifically addresses when to find an error case based on the lack of a reasonable efforts determination, stating in relevant part:

The case is ineligible at the end of the 12^th month from the date the child was considered to have entered foster care or at the end of the month in which the subsequent judicial determination of reasonable efforts was due. The case remains ineligible until a judicial determination that addresses reasonable efforts to finalize the permanency plan is made. This is an error case if a title IV-E payment was claimed for the ineligible period and the judicial determination was: 1) due prior to or during the PUR, but was not made during the PUR, or 2) due prior to or during the PUR and was made during the PUR, but was not timely.

Iowa Ex. 1, at 10 (emphasis in original). If a reasonable efforts determination is overdue at the beginning of a review period, a reasonable efforts determination made during the review period would not be timely. In that situation, the case would be properly treated as an error case, although the case would be ineligible for IV-E for only part of the review period.

As discussed below, however, we conclude that a reasonable efforts determination was made on July 15, 2003, so that the next such determination was not due until July 15, 2004. Since this eligibility requirement was met during the review period, the case was not an error case.

The July 15, 2003 order states in relevant part:

The matter proceeded to review hearing. Based upon the evidence presented, Petitioner's Exhibits admitted into evidence incorporated herein by this reference, and recommendations made, the Court finds by clear and convincing evidence that continued removal of the child is necessary to avoid imminent risk to the child's life or health. The Court is further satisfied that it would be contrary to the welfare of [Z.F.] to be returned to the parental home due to incompletion of the Shelton Cottage treatment program; and that reasonable efforts have been made to prevent or eliminate this out-of-home placement, but have been unsuccessful. Reasonable efforts have included D.H.S. Case Management, Family Centered Services, Multisystemic therapy, supervised probation, American Homefinding Shelter, Iowa Juvenile Home placement, relative placements, Lamoni Shelter, South Iowa Area Detention Center placements and Shelton Cottage group care.

* * * * * * *

The Court finds that the permanency goal in this matter is relative placement.

Iowa Ex. 18, at 1-2. The exhibits incorporated by reference in this order included permanency plan materials. Iowa Ex. 20 (hearing transcript) at 157.

Prior to issuance of this order, Z.F. had been in several placements. At age 12, Z.F. was placed in shelter care at his mother's request because of his out-of-control behavior, but was moved to a detention facility after misbehaving in the shelter. From there, Z.F. was moved to the Iowa Juvenile Home. Z.F. was then placed in his older sister's home. Z.F. was later placed in a shelter when his sister requested that he be removed from her home. Following that, Z.F. was placed with his grandfather. Z.F. was subsequently placed in a detention facility after the court found he had committed a misdemeanor (indecent exposure) and questions were raised about the appropriateness of placement with the grandfather. After that, Z.F. was placed in a residential treatment facility, Shelton Cottage, which had a sexual offender program. On July 15, 2003, he was still residing at Shelton Cottage. See Iowa Exs. 12-18, 20.

The "out-of-home placement" to which the order refers is thus Shelton Cottage. In context, we find the court's statement that reasonable efforts were made to "eliminate" this placement sufficient to constitute an explicit finding of reasonable efforts to finalize the permanency plan of relative placement. We read the statement that these efforts were "unsuccessful" as the court indicating that, notwithstanding the efforts made, the permanency plan could not be finalized at that time. That the court was addressing the State agency's efforts to finalize the child's permanency plan is made even clearer by the fact that the order also mentions the permanency goal of relative placement. Moreover, this court order meets the requirement of section 1356.21(d) that the court order state that the reasonable efforts determination was made on a case-by-case basis since the order expressly refers to exhibits documenting the reasonable efforts that the order lists as having been made with respect to this child.

ACF argues, however, that the July 15, 2003 order does not contain a reasonable efforts determination because the permanency plan it identifies - "relative placement" - "is a placement, not a goal." ACF Br. at 8. This argument has no merit. As Iowa points out, section 1356.21(b)(2)(i) includes the very type of placement in question here, described in the regulation as "placement with a fit and willing relative," as a type of permanency plan. (Moreover, the court indicated at the hearing that neither termination of parental rights--which frees a child for adoption--nor reunification with the mother were appropriate goals, making relative placement one of the few remaining options. Iowa Ex. 20, at 163.)

ACF also argues that most of the "efforts" listed in the order "are sites where Z.F. was placed" and that "[j]ust mentioning where he was placed does not establish that living in these facilities constituted reasonable efforts to finalize his permanency plan." ACF Br. at 9. This argument takes the court's statement out of context. The record as whole indicates that efforts were made to address Z.F.'s behavioral and other problems in structured environments and to take other steps to meet his permanency goal (which changed over time based on the information available about the appropriateness of the goal). See Iowa Exs. 12-18, 20-66. Thus, by including placement sites in the list of reasonable efforts, the court was not merely referring to places where the child had lived, but to attempts to address the barriers to moving Z.F. into a permanent arrangement that would be in his best interests. ⁽⁶⁾

Thus, ACF's arguments do not provide a basis for finding this case an error case. Nevertheless, this does not end our inquiry since ACF found that there had never been a determination of reasonable efforts to finalize the child's permanency plan in this case and so disallowed all of Iowa's claims for foster care maintenance payments (and administrative costs) made prior to, as well as during, the review period. We conclude, however, that reasonable efforts determinations were made in court orders dated January 8, 2002, August 9, 2002 and January 30, 2003 containing the same language as the language in the July 15, 2003 order discussed above. See Iowa Exs. 15-17. ⁽⁷⁾ Accordingly, we reverse the entire disallowance as to this case. ⁽⁸⁾

Sample Case #85 (J.D.)

ACF found this case ineligible on the ground that it lacked a timely judicial determination of reasonable efforts to finalize the child's permanency plan. An October 30, 2002 court order removed J.D., who was then two and one-half years old, from her mother's home based on the mother's failure to provide proper supervision. There is no dispute that the first reasonable efforts determination was due by October 30, 2003. As evidence that this determination was timely made, Iowa submitted court orders dated July 11, 2003 and October 28, 2003. Iowa Exs. 74 and 75. According to Iowa, the following language in the July 11 order constitutes a reasonable efforts determination:

Reasonable efforts have been made to eliminate the need for removal, including: in-home visitation, individual therapy, UAs [drug screening], psychosocial evals, Orchard Place [Child Guidance Center].

Iowa Ex. 74, at 1. The language "Reasonable efforts have been made to eliminate the need for removal, including:" is part of a "Children in Need of Assistance Review Order" form with blank lines on which the court may fill in relevant information. The listing of particular reasonable efforts that follows is handwritten. Iowa also relies on almost identical language in the October 28 order (although a judicial determination in only one of the two orders would be sufficient to establish the child's eligibility during the review period). Iowa Ex. 75, at 1. At the time that each order was issued, the Permanency Plan admitted into evidence by the court stated that the permanency plan for J.D. is to return to the mother's home. Iowa Ex. 80, at 14; Iowa Ex. 81, at 17. Prior to issuance of the orders, J.D. had been in several placements. J.D. was initially placed in a shelter upon her removal from home, placed with a foster parent, returned to the mother's home for almost three months, removed to a shelter, and then placed in the grandmother's custody. Iowa Exs. 78-81.

A statement in a court order that "[r]easonable efforts have been made to eliminate the need for removal" from the child's home, standing alone, might not be enough to document a judicial determination that reasonable efforts have been made to finalize the permanency plan for the child. ⁽⁹⁾ Here, however, it is clear from other language in the orders that the court knew that J.D. and a sibling had already been removed from home and that the permanency plan was to return them to their mother. The orders state, for example, that "[p]lacement of the children outside the home continues to be necessary, as a return home would be contrary to the welfare of the children . . . ." The orders also state that "[t]he Court has inquired of the parties . . . whether additional services are needed to facilitate the safe return of the children to the children's home." Thus, in the context of the court order as a whole, we find the language on which Iowa relies is sufficient to conclude that the court found that reasonable efforts were made to finalize J.D.'s permanency plan.

According to ACF, however, "[t]he orders do not show that the judge made the case-by-case determinations required by 45 C.F.R. § 1356.21(d)." ACF Br. at 10. ACF points to the following language appearing in both of the orders: "The Case Permanency Plan is adopted, all parties shall comply with the Plan and the recommendations contained therein are hereby ordered, with the following modifications." ACF notes that "[o]n neither form were there modifications noted, nor was the permanency plan included." Id.

ACF's argument has no merit. The handwritten notations in each order listing the specific reasonable efforts that the court found had been made clearly establish that the court made a case-by-case, individualized determination with respect to J.D. Iowa corroborates that the court made such a determination by submitting a copy of the permanency plan admitted into evidence by the court which describes the same efforts listed in the order. These efforts, such as in-home visitation, are consistent with the permanency plan to return J.D. to her mother. ⁽¹⁰⁾ As noted above, it is also apparent from the language of the orders that the court knew that J.D.'s permanency plan was to return home. Moreover, while the form order used by the court has a space for listing any modifications to the recommendations in the child's permanency plan, filling in this space would be necessary only if the court found modifications to be necessary. In the face of the other evidence in the order that the reasonable efforts determination was individualized and that the court was aware of what the permanency plan was for the child, ACF could not reasonably infer from the mere absence of any plan modification that the determination was not made on a case-by-case basis.

Accordingly, we conclude that Sample Case #85 was not an error case and reverse the disallowance as to this case.

Conclusion

For the foregoing reasons, we uphold the disallowance with respect to Sample Case #130 and reverse the disallowance with respect to Sample Case #51 and Sample Case #85.

Cecilia Sparks Ford

Sheila Ann Hegy

Judith A. Ballard
Presiding Board Member

1. Social Security Act §§ 470 through 479A; 42 U.S.C.A. §§ 670 through 679b. The current version of the Social Security Act can be found at www.ssa.gov/OP_Home/ssact/comp-ssa.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. Also, a cross reference table for the Act and the United States Code can be found at 42 U.S.C.A. Ch. 7, Disp Table.

2. This refers to affidavits attesting that the judicial determination occurred at a hearing that took place before the affidavit was executed. See Iowa Att. 1, at 10 (Title IV-E Foster Care Eligibility On-site Review Instrument and Instructions).

3. In its brief in this case, ACF withdrew its earlier finding that the case was also ineligible on the ground that it lacked a judicial determination that remaining in the home would be contrary to the child's welfare. ACF Br. at 5.

4. Iowa argues in addition that ACF's interpretation of the regulation would discourage states from placing runaways in foster care although those children "are often the most in need of a state's protection." Iowa Br. at 7; see also Iowa Reply Br. at 2-3. This argument assumes that a state could not obtain a reasonable efforts determination if the child were still absent. As we discuss below, Iowa provided no basis for this assumption.

5. Iowa cited to the January 2004 version of the Review Instrument, which was issued during the review period in question here. The January 2003 version contains similar language.

6. ACF also expressed a concern that states not confuse reasonable efforts to prevent removal with reasonable efforts to finalize permanency plans. See ACF Br. at 9, n.2. This issue is not raised by the facts of this sample case; however, we address the issue with respect to the next sample case.

7. ACF argues that the January 8, 2002 order does not contain a reasonable efforts determination in part because it does not state what the permanency plan for the child is. The transcript of the hearing that led to this order shows that the court approved a change in the permanency plan from return home to relative placement. Iowa Ex. 20, at 83, 86. A transcript can provide the necessary documentation that a reasonable efforts determination has been made. 45 C.F.R. § 1356.21(d)(1).

8. ACF's Case Record Summary for the review shows the dates of ineligibility for this sample case as 6/30/01 - 3/31/04. Iowa Ex. 85, at 5. However, since Iowa did not claim IV-E funds for any payments prior to 2002 (see Iowa Exhibit 11, at 23), we need not consider whether court orders dated July 18, 2000 or May 29, 2001 contained a reasonable efforts determination.

9. Section 471(a)(15) provides that, after the child's removal from home, the continuation of efforts to "eliminate the need for removing the child from the child's home" is appropriate only if continuation is determined to be consistent with the permanency plan for the child. Thus, for example, if a child is removed from his parents' home but the permanency plan becomes termination of parental rights and adoption, continuation of reasonable efforts directed at the parents' home would not be appropriate. Even if the permanency plan is to return the child to his or her home, steps to eliminate the reasons the child was removed from home might not in every case also constitute (at least standing alone) reasonable efforts to return the child to his or her home since circumstances change over time.

10. The statement in the court orders that the court admitted into evidence documents from "Prairie Health" is further evidence of a case-by-case determination since those documents pertain to individual therapy provided to J.D., one of the reasonable efforts listed by the court. See, e.g., Iowa Ex. 80, at 31-32.