DEPARTMENTAL APPEALS BOARD
Department of Health and Human Services
SUBJECT: Illinois Department of DATE: April 13, 1989 Children and
Family Services Docket No. 87-154 Decision No. 1037
DECISION
The Illinois Department of Children and Family Services (State) appealed
a determination by the Administration for Children, Youth and Families
(ACYF, Agency) of the Office of Human Development Services. ACYF found
that the State was ineligible for $1,034,619 awarded to the State for
fiscal year (FY) 1984 under section 427 of title IV-B of the Social
Security Act (Act). Section 427 of the Act provides that a state may
receive additional funds for child welfare services, beyond the amount
available under section 420 of the Act, if the state meets certain
requirements for protecting children in foster care.
ACYF initially approved the State's request for section 427 funds for FY
1984 based on a written certification by the State that it met the
requirements of section 427. Subsequently, ACYF performed a compliance
review to validate the State's self-certification. ACYF evaluated the
State's compliance on two levels: whether the State had established
policies and procedures for implementing the section 427 requirements
and whether these policies and procedures were operational. ACYF
determined that the State had policies and procedures for implementing
the section 427 requirements; however, after surveying a sample of
foster care case records, ACYF found that the requirements were not
actually met in a sufficient number of cases to constitute compliance.
ACYF required a 90% rate of compliance in order for the State to be
found eligible for section 427 funds, based on the number of years the
State had participated in the section 427 program. ACYF found a total
of 14 out of 32 cases to be unacceptable. The State contested ACYF's
findings in 11 of these cases. There is no dispute that if the Board
reversed ACYF's findings on even one of the failed cases, there would
not be a sufficient number of failed cases to find that the State was
ineligible for the FY 1984 section 427 funds. As discussed below,
however, we sustain ACYF's findings with respect to all of the contested
cases. We also reject the State's more general argument that the
Agency's application of a 90% compliance standard was arbitrary,
capricious, and an abuse of discretion. Accordingly, we affirm ACYF's
determination that the State was ineligible for the FY 1984 section 427
funds.
Applicable Law
As one of the conditions for the receipt of additional child welfare
funds, section 427(a)(2)(B) requires that a state have implemented and
be operating to the satisfaction of the Secretary--
A case review system (as defined in section 475(5)) for each child
receiving foster care under the supervision of the State. . . .
Section 475(5) provides that--
The term "case review system" means a procedure for assuring that--
(A) each child has a case plan designed to achieve placement in
the least restrictive (most family like) setting available and
in close proximity to the parents' home, consistent with the
best interest and special needs of the child,
(B) the status of each child is reviewed periodically but no
less frequently than once every six months by either a court or
by administrative review (as defined in paragraph (6)) in order
to determine the continuing necessity for and appropriateness of
the placement, the extent of compliance with the case plan, and
the extent of progress which has been made toward alleviating or
mitigating the causes necessitating placement in foster care,
and to project a likely date by which the child may be returned
to the home or placed for adoption or legal guardianship, and
(C) with respect to each such child, procedural safeguards will
be applied, among other things, to assure each child in foster
care under the supervision of the State of a dispositional
hearing to be held, in a family or juvenile court or another
court (including a tribal court) of competent jurisdiction, or
by an administrative body appointed or approved by the court, no
later than eighteen months after the original placement (and
periodically thereafter during the continuation of foster care),
which hearing shall determine the future status of the child
(including, but not limited to, whether the child should be
returned to the parent, should be continued in foster care for a
specified period, should be placed for adoption, or should
(because of the child's special needs or circumstances) be
continued in foster care on a permanent or long-term basis); and
procedural safeguards shall also be applied with respect to
parental rights pertaining to the removal of the child from the
home of his parents, to a change in the child's placement, and
to any determination affecting visitation privileges of parents.
Section 475(6) defines an "administrative review" to mean--
a review open to the participation of the parents of the child
conducted by a panel of appropriate persons at least one of whom is
not responsible for the case management of, or the delivery of
services to, either the child or the parents who are the subject of
the review.
These provisions were added by the Adoption Assistance and Child Welfare
Act of 1980, Public Law 96-272, which amended the program of child
welfare services under title IV-B of the Social Security Act and also
established a new foster care maintenance program under title IV-E of
the Act. These amendments had three major goals: (1) prevention of
unnecessary separation of a child from its parents; (2) improved quality
of care and services to children and their families; and (3) permanency
for foster care children through reunification with parents or through
adoption or other permanency planning. See 45 Fed. Reg. 86818 (December
30, 1980).
The State's arguments
The State raised several different arguments concerning the 11 contested
cases. The State argued that six failed cases (#1, 7, 13, 18, 26, and
28) involved children in relatives' homes who were not in "foster care"
within the meaning of section 427 and, therefore, should not have been
included in the case universe or the sample. This issue was considered
particularly significant by the parties because it arises not only in FY
1984 but in succeeding years as well.
One of the cases raising this "relative" issue (#18) was originally
failed because no case record could be located. The State argued that
the proper procedure would have been either to pass the case or to
substitute another case.
The State argued that four additional cases (#19, 27, 31 and 32), which
failed on the ground that there was inadequate documentation of
dispositional hearings, had hearings on Calendar 18/19 or Calendar 70/80
of the Cook County Juvenile Court which constituted dispositional
hearings.
In one of the cases raising the "Calendar 18/19" issue (#27), the
State
contended that there was also a hearing (at which parental rights were
terminated) which could be considered a timely dispositional hearing
because it was scheduled before the due date although it was then
continued to a later date. The State also argued that even if the later
date was the relevant date, the hearing should not be considered
untimely since it was only two days past the 30-day grace period which
the Agency agreed was applicable.
The last contested case (#10) was failed on the ground that no
dispositional hearing had been held since 1981. The State asserted that
a regulatory exception exempting children in adoptive placements from
the dispositional hearing requirement applied in this case. The State
also argued that prior year failings were outside the scope of the FY
1984 review.
The arguments noted here, as well as the State's general argument that
the 90% compliance standard was not proper, are discussed below.
Whether children placed with relatives were in foster care
Section 427(a) of the Act requires that a state have "a case review
system (as defined in section 475(5)) for each child receiving foster
care under the supervision of the State . . . ." The term "foster
care"
is not further defined in the Act or in the Agency's implementing
regulations. This led to a dispute with respect to the definition of
foster care to be used in selecting the universe for the FY 1984 case
review. The State took the position that the universe should consist of
children in homes which were licensed by the State as foster family
homes or approved by the State as meeting foster family home licensing
standards. The State thus used as the definition of "foster care"
the
definition of the term "foster family home" set out in section 472(c)
of
title IV-E of the Act. The State asserted that under this definition it
could exclude from the universe children in those relatives' homes which
the State referred to as "approved only" homes since "approved
only"
homes were not approved as meeting foster family home licensing
standards.
The Agency contended that all children placed with relatives were in
foster care within the meaning of section 427, and required that they be
included in the universe. Six cases (#1, 7, 13, 18, 26, and 28) which
the State contended involved children living in "approved only" relative
homes failed the case record survey because they lacked timely periodic
reviews or dispositional hearings. The State argued that the cases fell
outside its definition of foster care and were thus improperly included
in the universe.
We first note that this argument may not be material here. As discussed
later, the State failed to establish, even when specifically given an
opportunity to do so, that any of the children in question were in
"approved only" homes. Since it is possible that the State could
establish this as a matter of fact if given a further opportunity,
however, we proceed to consider the legal issue which the State raised.
We find that, contrary to what the State alleged, "approved only"
homes
were approved as meeting licensing standards for foster family homes.
Thus, children placed in "approved only" homes were in foster care,
even
under the definition of that term the State contended applied, and
should have been afforded the section 427 protections. (Accordingly, we
need not reach the question whether the State's definition of foster
care is correct.) We make this finding even if the policy adopted by
the State after these homes were approved for placement can be read as
providing that "approved only" homes were not approved as meeting
foster
family home licensing standards. As explained in detail below, these
homes were approved as meeting the licensing standards in effect until
October 1981. When the licensing standards were changed, these homes
were unable to meet the new standards but were regularly reapproved as
meeting the earlier standards. Under these circumstances, the State was
not justified in distinguishing between "approved only" homes and
homes
approved as meeting the new licensing standards for purposes of
determining which children should have been afforded the section 427
protections.
In order to explain our determination on this issue, we set out here
what the record shows about the situation as it existed prior to
November 30, 1981. At that time, the Illinois Department of Children
and Family Services (DCFS) required that a caseworker fill out a
one-page Relative Foster Care Approval Checklist (Form CFS 454) in order
to determine whether a child could appropriately be placed in the home
of a relative. State's appeal file, Ex. 42, Child Welfare Manual
section 2.8.3. In Illinois Dept. of Public Aid, DAB No. 478 (1983), the
State contended that, although the process used for approving homes of
relatives was less formal than the process used for licensing other
homes in which children were placed, the same standards were applied so
that relatives' homes were properly considered as approved as meeting
licensing standards (and thus as "foster family homes") for purposes
of
qualifying for foster care payments under section 408 of title IV-A of
the Act providing for Aid to Families with Dependent Children - Foster
Care (AFDC-FC). The Board concluded that the Checklist--which
summarized the more detailed health and safety standards in the
licensing regulation--was sufficient to remind the caseworkers of the
standards that should apply and thus adequately documented that the
licensing standards were applied and met. Accordingly, the Board
reversed the disallowance of FFP claimed by the State for AFDC-FC
payments for children in approved relatives' homes.
In October 1981, the State's licensing standards were revised. Letter
from Engman to Ford dated November 18, 1988, attachments. Thereafter,
effective December 1, 1981, DCFS adopted rules which provided as
follows:
New Relative Caretaker. When a child for whom DCFS is legally
responsible is placed with a relative caretaker after November 30,
1981 the relative home must be evaluated to determine whether
foster family home licensing standards are met within three (3)
months after placement.
* * * *
Relatives Approved Prior To November 30, 1981. Current relative
caretaker homes must be approved as meeting foster family home
licensing standards no later than one year from the last approval
date (most recent CFS 454).
State's appeal file, Ex. 47, section 332.5. The DCFS rules further
provided that relative homes approved prior to November 30, 1981 which
were unable to meet licensing standards could be "grandfathered as
approved only following determinations by Department staff that the
health, safety and well-being of the related children are insured
through continuation of the placement." State's appeal file, Ex. 46,
section 332.5. These determinations were to be made using Form CFS 454,
the same checklist utilized previously to approve all relatives' homes.
State's appeal file, Ex. 47, section 332.4, 332.5. Thus, such homes,
although not meeting current licensing standards, could continue to be
approved as meeting the earlier licensing standards.
Nevertheless, the DCFS rules specifically stated that approval of the
grandfathered homes was "not synonymous with `approval as meeting foster
family home licensing standards'" (Id., section 332.5), and that
"[t]hese homes shall not be designated `approved as meeting licensing
standards'" (Id., section 332.4). The State took the position that this
meant that children in "approved only" homes were not considered to
be
in foster care for purposes of section 427. There is nothing in the
DCFS rules that expressly states that as the State's policy, however.
The only basis for such an argument lies in the fact that other DCFS
rules required "administrative case reviews" only for children "in
foster family homes which are licensed or approved as meeting licensing
standards, group homes, or child care institutions." State's appeal
file, Ex. 7, p. 4, section 305.6 a) 1). A State witness indicated in
testimony at the hearing that administrative case reviews were designed
to meet the requirements of section 427. Transcript of 7/18/88 hearing,
pp. 46-47, 58-59. Thus, the DCFS rules could be read as not requiring
periodic reviews within the meaning of section 427 for children placed
in "approved only" homes.
In our view, however, this does not conclusively establish that these
children were not in foster care even as that term is defined by the
State. The DCFS rules also provided that "the Department may elect to
conduct administrative case reviews on other groups of children [than
those in foster family homes which are licensed or approved as meeting
licensing standards, group homes or child care institutions] as fiscal
and staffing resources permit." State's appeal file, Ex. 7, p. 4.
There is, moreover, no indication in the DCFS rules furnished for the
record in this case that children in "approved only" homes were not
required to be given dispositional hearings as called for by section
427. Furthermore, the fact, discussed later, that the State included
children in "approved only" homes in the inventory required by section
427, and that the State did not rule out the possibility that federal
foster care maintenance payments were claimed for these children also
casts some doubt on the State's position. Thus, it appears that the
distinction alleged by the State to exist for purposes of section 427
between children in "approved only" homes and other children placed
with
relatives may have been developed after-the-fact in order to avoid the
loss of section 427 funds, rather than intended at the time the DCFS
rules were amended in 1981.
Even if the State's formal policy did not consider children in "approved
only" homes to be in foster care, this is not dispositive. The Board
has previously recognized that "some deference should be accorded to a
state's interpretation of its own law and regulations, so long as that
interpretation is reasonable and does not conflict with federal program
purposes." Illinois Dept. of Public Aid, supra, p. 11; see also Florida
Dept. of Health and Rehabilitative Services, DAB No. 414 (1982). It is
not clear that the DCFS rules here rise to the level of the State's "own
law or regulations," however, since their purpose was (at least in part)
to implement the federal section 427 requirements. In any event, as
explained below, we conclude that it was unreasonable for the State to
provide that children in relatives' homes which were approved as meeting
the earlier licensing standards were not in homes approved as meeting
licensing standards for purposes of section 427.
As indicated above, DCFS policy before FY 1982 in effect required
relatives' homes to meet foster family home licensing standards. This
policy did not change in FY 1982; only the licensing standards changed.
DCFS rules provided for a transition between the old and new licensing
standards so that a child did not have to be removed from a relative's
home which could not comply with some of the new licensing standards
which were not critical to assure the child's health, safety, and
well-being. Although a separate procedure for the continuing approval
of such homes was apparently justified, we see no basis for
distinguishing between such homes and homes approved as meeting the new
licensing standards for purposes of section 427. The preamble to the
final regulations implementing section 427 indicates that a placement
which in fact provides foster care and is licensed or approved under
some provision of state law may be considered a foster family home even
if it is not called that by the state. 48 Fed. Reg. 23104, 23105 (May
23, 1983). Moreover, an underlying purpose of section 427 was to
encourage states to take steps to ensure that children do not remain
adrift in the foster care system. Id. at 23104. The record is devoid
of evidence that children in relatives' homes whose status differed from
that of other children in this type of placement only because the
licensing standards had been updated were any less in need of the
section 427 protections.
It is also significant that the State included children in "approved
only" homes in the inventory required by section 427(a)(1). That
section requires "an inventory of all children who have been in foster
care under the responsibility of the State for a period of six months
preceding the inventory. . . ." If the State considered children in
"approved only" homes to be in foster care for purposes of the
inventory, their exclusion from the section 427(a) case reviews becomes
suspect. The State argued that it was permitted to include children in
addition to those in foster care in the inventory, and that the children
in "approved only" homes were such additional children. It cited in
support of its position 45 C.F.R. 1357.25 (1983), which states that "the
inventory must include those children under the placement and care
responsibility of the State title IV-B or IV-E agencies. At the State's
discretion, other children may be included." The State provided no
evidence, however, that it included children in "approved only" homes
in
the inventory because they were considered "other children" rather
than
because they were considered to be in foster care.
Our conclusion that the six children in question here were properly
included in the universe sampled can also be supported on the ground
that the State never established that the children were in fact in
"approved only" homes. The State said that it determined that the
six
children were in "approved only" homes "based upon its review
of its
computer files." Letter from Engman to Ford dated November 18, 1988, p.
1. The State did not identify the nature of these files, although it
did indicate elsewhere that State records had different care codes for
children in homes approved as meeting licensing standards and children
in "approved only" homes. Id., Attachment, p. 2. The Agency took the
position that it was unwilling to rely on "case coding or statements
made by State staff," but would require "documentation in the provider
record" to establish that the child was placed in an "approved only"
home. Agency's Reply to State's Responses to Questions Posed by the
Board at Closing Argument, p. 1. The State declined to provide
documentation from the provider records, contending that it would be too
burdensome.
We do not agree with the Agency that the only adequate documentation of
the status of the children in question would be provider records.
However, we agree with the Agency that the State's general statement
regarding its review of its computer files is not adequate proof of the
critical fact that each of the six children was in an "approved only"
home. Since the State did not establish that the children in cases #1,
#7, #13, #18, #26, and #28 were in "approved only" homes, the record
contains no factual predicate for the State's legal argument that
children in "approved only" homes were not in foster care.
Accordingly, we sustain the Agency's findings that cases #1, 7, 13, 18,
26 and 28 were out of compliance.
Whether case #18 was properly failed because the case file could not be
located during the case record survey
The Agency failed case #18 because the State was unable to locate the
child's individual case file during the case record survey. The State
contended that it was "arbitrary in the extreme to fail a case for
inability to find the file, especially when the case was closed during
the year being audited. . . [and] was more likely than not to have met
the review criteria." State's brief dated December 16, 1987, p. 53.
The State asserted that the procedure used in the FY 1981 case record
survey was either to pass a case for which the file was missing or to
replace the case with the next available case from the oversample, which
consisted of cases drawn from the universe in excess of the maximum
number required for a sample. The Agency confirmed that for FY 1981 it
did not fail cases where the case file was missing. Transcript of
7/19/88 hearing, pp. 348-349.
During the course of the appeal, the State located information about
case #18 which it contended established that the section 427 protections
had been met. Neither the State nor the Agency indicated that this
information could not have been considered in lieu of a case file during
the case record survey. As we explain below, the information submitted
shows that the section 427 requirements were not met in this case; thus,
the question whether the Agency's treatment of the missing case file was
proper has been rendered moot.
The State submitted a computer print-out which showed that the child was
first placed in State care, in the home of a relative, on 11/16/83, that
a "6 month review" was held 5/9/84, and that the child was released
from
State guardianship to the relative's home by court order on 7/9/84.
State's appeal file, Ex. 40. The State argued that a timely
"administrative review" was held, that no dispositional hearing was
required, and that in any event the child was not required to be
afforded the section 427 protections because of her placement in a
relative's home. State's reply brief, p. 27. These arguments do not
avail the State. As discussed previously, we reject the State's
position that children placed with relatives in "approved only" homes
were not subject to the requirements of section 427. Moreover, while
it is clear that no dispositional hearing was required since the child
was in foster care less than eight months, the evidence shows that the
requirement for a periodic review, which was applicable, was not
satisfied. The computer print-out specifically indicates that the
review held was a "6 month review"; however, as noted previously,
the
State distinguished between six month reviews and administrative
reviews, acknowledging that only administrative reviews satisfied the
requirements of section 427.
Since there is no reason to conclude that information that might have
been contained in the actual case file would disprove our conclusion
that the section 427 requirements were not met, we sustain the Agency's
finding that case #18 was out of compliance.
Whether "Calendar 18/19" and "Calendar 70/80" hearings
constituted
dispositional hearings
ACYF found four cases (#19, 27, 31, and 32) unacceptable on the ground
that the information provided by the State was not sufficient to
document that dispositional hearings were held. The State contended
that the dispositional hearing requirement was satisfied in all but case
#32 (discussed later) by the conduct of a hearing on "Calendar 18/19"
of
the Cook County Juvenile Court. The State took the position that it
was not necessary to document what happened at the hearing in each case
because the Calendar 18/19 hearings generally satisfied the section 427
requirements for a dispositional hearing.
According to the State, a hearing on Calendar 18/19 consisted of a
meeting or conference between the Guardian ad Litem (G.A.L.) and a DCFS
liaison. The child's caseworker was instructed to file a written report
three days prior to the hearing date, but was directed not to appear at
the hearing or to tell either the child or the child's parents to
appear. The DCFS liaison would present the caseworker's report, which
dealt with the child's permanency goal and objectives and the child's
progress toward achieving those, to the G.A.L. If the G.A.L. was
satisfied with the progress being made, he would recommend that the
child remain in his or her current foster care placement. The court
would then enter an order based on the G.A.L.'s dispositional
recommendation. If the G.A.L. determined that a change in the child's
status was required, he would refer the case to another calendar for
further proceedings. State's appeal file, Ex. 29, p. 5; Transcript of
2/18/88 hearing, pp. 172-174, 185. In the three cases in question, the
G.A.L. determined that the child's status should remain the same until
the date set for the next Calendar 18/19 hearing. Neither the child nor
the child's parents attended the hearing in any of these cases. State's
appeal file, Ex. 32, Attachment #2.
The State did not establish that the Calendar 18/19 hearings met the
requirements for a dispositional hearing in these three cases. Section
475(5)(C) requires that "procedural safeguards will be applied . . . to
assure each child in foster care under the supervision of the State of a
dispositional hearing . . . ." An opportunity for parental
participation should clearly be considered a procedural safeguard in a
proceeding at which their child's future is at stake. Moreover, in PI
82-06, a program instruction dated June 3, 1982 which was sent to the
states, ACYF stated that section 475(5)(C) "requires that a hearing be
held with the concomitant due process safeguards that apply to court
proceedings." State's appeal file, Ex. 3, p. 9. A due process
safeguard applicable to any court proceeding is notice and an
opportunity to be heard for interested parties. A child's parents whose
rights have not been terminated are interested parties to a
dispositional hearing since, in the parents' absence, the full range of
possible dispositions specified in section 475(5)(C)--notably return to
the parent and placement for adoption--could not be explored adequately.
Thus, Calendar 18/19 hearings do not qualify as dispositional hearings
where parents who are interested parties are not afforded an opportunity
to participate.
The State also asserted that the Act gives procedural rights, such as
the right to notice of a hearing, to parents only if certain issues not
involved here are raised. The statutory provision on which the State
relied, section 475(5)(C), provides that--
procedural safeguards shall also be applied with respect to
parental rights pertaining to the removal of the child from the
home of his parents, to a change in the child's placement, and to
any determination affecting visitation privileges of parents.
We see no basis, however, for the State's view that this provision makes
an opportunity for parental participation in dispositional hearings
unnecessary. Notice to the parents is required under this provision in
a variety of situations, including dispositional hearings which will
result in a change in the child's placement. There is nothing in this
provision which undercuts our interpretation of the earlier reference in
section 475(5)(C) to procedural safeguards as requiring that parents be
notified of a dispositional hearing.
The State also asserted that the parents' presence was not required
since cases were placed on Calendar 18/19 only in those instances where
parents were "inactive," i.e., neither "working with the DCFS
[n]or
opposing DCFS's plan. . . ," or had not been located. Transcript of
7/18/88 hearing, p. 171. If the State had established that the parents
in the three cases in question here could not be located or that their
rights had been terminated, then arguably the Calendar 18/19 hearings
could qualify as dispositional hearings. (See note 14.) The State did
not provide any evidence to this effect, however. Accordingly, we
assume that the cases were placed on Calendar 18/19 because the parents
were "inactive" rather than missing. Simply because a child's current
plan did not require the parents' involvement does not mean that the
G.A.L. should not have considered the possibility of other dispositions
requiring their involvement, however. The State's argument makes clear
that the scope of the Calendar 18/19 hearings was a very narrow one--to
review the progress being made towards goals established in the child's
current case plan. The purpose of a dispositional hearing, however, is
to provide a forum in which it can be determined whether the child's
current case plan or some other case plan is appropriate. In the
parents' absence, a meaningful consideration of dispositions other than
continuing the child in the current foster care placement was not
possible.
The State further contended that a "Calendar 70/80" hearing constituted
a dispositional hearing in case #32. Calendar 70/80 was described by
the State as a "guardianship calendar" for cases which did not have
a
pending court date for any matter of status or evidence to be heard.
Transcript of 7/18/88 hearing, p. 170. Based on the case record survey,
the Agency found that the documentation made available for case #32 was
deficient on the ground that there was no indication "of who was present
at the hearing and what disposition was ordered." State's appeal file,
Ex. 31. The State subsequently provided a document signed by the judge
who presided over Calendar 70/80 showing that a Calendar 70/80 hearing
at which the G.A.L., a DCFS liaison, and a probation officer were
present was held in this case on two occasions in FY 1984. This
evidence does not justify reversing the Agency's findings, however. The
disposition made at each hearing was described as follows:
Supplemental Petition Reviewed; Return to Guardianship Calendar
(i.e. child remains under guardianship and in placement with DCFS)
State's appeal file, Ex. 32, Attachment #1. This fails to specify the
period of time for which the child should be continued in foster care as
required by section 475(5)(C). Accordingly, we sustain the Agency's
findings that cases #19, 27, 31, and 32 were out of compliance.
The State also argued, however, that the Agency had articulated
increasingly strict standards with respect to the level of documentation
necessary to show that the dispositional hearing requirement had been
met. The State asserted that the Agency's failure to accept the
documentation which it provided in response to the Agency's requests was
arbitrary, capricious, and an abuse of discretion, since not until
recently did the Agency require documentation showing that a hearing
included a consideration of all matters specified in section 475(5)(C).
According to the State, when the 1984 case record survey was being
conducted, "Agency personnel appeared to determine compliance with
hearing requirements solely upon the basis of whether an event occurred
by a certain due date." State's reply brief dated 5/16/88, p. 21.
However, the State could not reasonably conclude that the dispositional
hearing requirement was satisfied in every instance where some form of
hearing was held by the due date. Otherwise, the State could label any
hearing which involved the child as a dispositional hearing when such
hearings could obviously serve different purposes. See Virginia Dept.
of Social Services, DAB No. 596 (1984); Delaware Dept. of Services for
Children, Youth and Their Families, DAB No. 699 (1985). Moreover, while
the Agency indicated at various times that different forms of
documentation were acceptable, it was implicit that the documentation
would be acceptable only if it demonstrated that a dispositional hearing
was held.
Accordingly, since none of the documentation provided by the State
showed that hearings were held which qualified as dispositional hearings
under the statute, there is no basis for reversing the Agency's findings
in these cases.
Whether a dispositional hearing in case #27 which was scheduled to take
place before the due date but was continued by the court until after the
due date was timely
The State took the position that even if Calendar 18/19 hearings in case
#27 were not properly considered dispositional hearings, there was a
court hearing (before a judge) which constituted a timely dispositional
hearing. According to the State, a dispositional hearing was due in
this case by 3/5/84. The court "half sheet" for this child shows that
a
hearing to terminate parental rights (TPR hearing) was scheduled for
1/27/84. State's appeal file, Ex. 28, p. 1. The "half sheet" entry
for this date indicates that the TPR hearing was continued until 4/6/84.
The reason for the continuance is unclear from the half sheet; however,
the State asserted that "[t]he parents apparently did not appear on . .
. [1/27/84], and the matter was continued to April 6, 1984." State's
brief dated 12/16/87, p. 52. A hearing was held on 4/6/84 at which
parental rights were terminated. The State argued that since the
hearing was scheduled for 1/27/84, that should be considered the date of
the dispositional hearing for purposes of section 427. The State argued
in the alternative that the hearing on 4/6/84 should be considered a
timely dispositional hearing since it was held only two days after the
due date, taking into account the 30-day grace period which the Agency
agreed was applicable.
We conclude that the 4/6/84 hearing was untimely. The Board has
consistently upheld the Agency's view that the granting of a grace
period lies within the Agency's discretion but does not alter the basic
statutory requirements and does not authorize a state to grant itself a
further extension of time. See Florida Dept. of Health and
Rehabilitative Services, DAB No. 643 (1985). The State did not offer
any reason why this case should be treated differently.
We cannot find, moreover, that a dispositional hearing was held on
1/27/84. In a decision issued in another case after briefing in this
case was completed, the Board found that ACYF had a policy which
permitted it to accept a dispositional hearing as timely as long as one
was scheduled for a date which was timely, even if the hearing was
continued until a later date. Idaho Dept. of Health and Welfare, DAB
No. 1011 (1989). However, we conclude that it was not reasonable to
apply this policy under the circumstances present here. The policy is
appropriately applied where it would be unfair to a state not to find
the dispositional hearing requirement met. It does not excuse states
from doing all that they reasonably can to assure that a timely
dispositional hearing is held in each case.
Here, the State did not establish that the hearing was continued for any
reason other than the convenience of the State. The State alleged that
"[t]he State on at least two occasions set hearings well in advance of
the March 5, 1984 due date but had to continue them because of inability
to effect service of notice on the parents." State's brief dated
12/16/87, p. 53. However, it is not clear that this was the reason for
the continuance granted on 1/27/84 since the State stated specifically
with respect to the 1/27/84 hearing not that the parents were not
served, but merely that the parents did not appear. Moreover, the State
also stated that on December 22, 1983, "the court directed issuance of
an alias summons to the parents for a January 28, 1984 hearing." Id.,
p. 52. An alias summons is issued to cure a defect in form or manner of
service of a prior summons. Black's Law Dictionary 66 (5th ed. 1979).
There is no reason to believe that the alias summons was not
successfully served, and the record shows no reason why the hearing
could not have proceeded despite the parents' absence. Thus, it appears
that the hearing was continued merely for the convenience of the State.
Moreover, the State did not offer any reason why the hearing could not
have been rescheduled for a date on or before 3/5/84, the due date for
the dispositional hearing. The court's failure to set an earlier
hearing date because its calendar was too crowded would not be a
legitimate reason. As the Board observed in Arkansas Dept. of Human
Services, DAB No. 553 (1984)--
It is implicit in Section 427 that states must provide the
resources necessary to implement the required safeguards and insure
that courts understand their role in implementing these safeguards.
To recognize a court's lack of resources or diligence as an excuse
for non-compliance would defeat the purpose of the statute.
Arkansas, p. 8.
Finally, we note that the facts in this case are unlike the situation
presented in Idaho, where proceedings were actually commenced before the
due date but were continued.
Accordingly, we sustain the Agency's finding that case #27 was out of
compliance.
Whether the exception to the dispositional hearing requirement for
children in adoptive placements applied in case #10
The Agency failed case #10 on the ground that the only dispositional
hearing in this case was held on January 22, 1981. Although a
dispositional hearing was due prior to FY 1984 (the fiscal year under
review), the Agency stated that it would have passed this case if a
dispositional hearing had been held by October 1, 1983 (the first day of
FY 1984). The State took the position that the child was exempt from
the requirement for dispositional hearings because the child was in an
adoptive placement when the dispositional hearing was due. Section
1356.21(e) of 45 C.F.R. (1983) provides that dispositional hearings are
not required for children in adoptive placements pending finalization of
the adoption. The preamble to this regulation described the elements of
an adoptive placement, stating that "[t]o the extent that this child is
free for adoption, placed in an approved home for the purpose of
adoption and the child's case plan goal is adoption, a subsequent
dispositional hearing is not required . . . ." 48 Fed. Reg. 23104,
23109 (May 23, 1983).
The State asserted that the child was in an adoptive placement from
November 1982 until May 1983. The Agency agreed that if the child was
in an adoptive placement during that time, the case should have passed
since the child was not required to have a dispositional hearing until
18 months after the end of the adoptive placement, which fell after the
end of FY 1984. The Agency, however, took the position that the child
was not in an adoptive placement during the period in question.
The State cited in support of its position that the child was in an
adoptive placement in November 1982 a "Client Service Plan" dated
11/17/82, which stated that the family with whom the child was living
"plans to adopt." State's appeal file, Ex. 26H, p. 2. It also pointed
to a "Report of Child's Progress" of the same date which stated that
"[i]f or when parental rights are terminated, the . . . [foster parents]
plan to pursue adoption." Id., p. 4. The child's mother had signed a
document on 8/13/81 surrendering the child in order to permit adoption,
and the father had died on 3/28/82, although apparently no action could
be taken to terminate parental rights until the death certificate for
the father was obtained in December 1982. State's appeal file, Ex. 26E
and Ex. 26H, pp. 2, 23. The State argued that the child remained in an
adoptive placement until May 1983 when both the "Client Service Plan"
and "Report of Child's Progress" indicated that the adoption unit
had
decided to seek to place the child elsewhere for adoption. The State
acknowledged that the records did not show precisely when the decision
not to pursue adoption by the family with whom the child was currently
living was made. It asserted, however, that the child should be
considered to have been in an adoptive placement until the decision was
documented in the child's case record in May 1983.
The Agency took the position that the child was not in an adoptive
placement during the period in question. It asserted that parental
rights were not terminated so that the child was not free for adoption.
The Agency also argued that there was never any commitment made by the
foster family to adopt the child, as evidenced by the submission of a
petition for adoption or the signing of an adoption assistance
agreement, but that the foster family had merely discussed the matter.
The Agency also pointed to the lack of an approved home study for the
adoptive parents as evidence that the child was not in an adoptive
placement, noting the preamble language requiring that the child be
"placed in an approved home for the purpose of adoption."
We agree with the Agency that the child was not in an adoptive
placement. Far from supporting the State's position that the child was
in an adoptive placement, the child's case record clearly shows that
DCFS never considered the placement to be an adoptive placement. The
11/17/82 "Client Service Plan" for the child indicates that, as of
5/26/82, the objective in the case was "to secure an adoptive
placement." State's appeal file, Ex. 26H, p. 3. The "Report of Child's
Progress" dated 5/12/83 states, however, that "[a]doptive placement
was
not achieved due to the Adoption Unit's decision to place outside of the
area." State's appeal file, Ex. 26H, p. 25. (Emphasis added.) In
contrast, when the child was subsequently placed with another family,
the placement was referred to as an "adoptive placement," with the
next
step being "legal adoption." State's appeal file, Ex. 26H, p. 1. Since
the State agency responsible for administering the foster care program
and implementing the requirements of section 427 did not itself regard
this placement as an adoptive placement, the State's arguments to the
contrary here can be given little weight.
Even if DCFS had not clearly found that adoptive placement was not
achieved during the period of November 1982 through May 1983, we would
not be persuaded that the child was in an adoptive placement. While the
foster family had indicated that it planned to adopt the child when
parental rights were terminated, the record does not clearly show that
the foster family still wanted to adopt the child once the child was
actually free for adoption. The foster family's plans to adopt made
prior to the termination of parental rights may have been tentative
since adoption was not possible at that point. Thus, although something
short of a petition for adoption or adoption assistance agreement may
have been sufficient evidence of a commitment to adopt, there was no
evidence here which is sufficient.
The State also argued that the lack of a dispositional hearing due in a
prior year was not a basis for failing the case in FY 1984. A similar
argument was raised in Connecticut Dept. of Children and Youth Services,
DAB No. 952 (1988). There, the Agency failed cases for which there was
no hearing within the 18 months plus 30 days preceding FY 1985, the year
under review. The Board concluded that it was proper for the Agency to
look at whether a hearing was held in prior fiscal years since it was
"not possible to determine whether a hearing was due in FY 1985, and if
so when, without knowing when the last hearing was held." Connecticut,
p. 15. The Board further stated that--
[i]f each year were evaluated without regard to past performance, .
. . a dispositional hearing might never be held. . . . This not
only violates the specific requirements of the Act with respect to
the timing of . . . dispositional hearings, but also frustrates
congressional intent to prevent foster care "drift." Thus,
although funds are separately appropriated for each fiscal year,
the section 427 protections cannot be implemented if each fiscal
year is viewed separately in evaluating a state's performance.
Id., p. 16. The State offered no reason why the Board should reach a
different result in the present appeal. Accordingly, we conclude that
the Agency properly failed case #10 on the ground that no dispositional
hearing was held by the first day of the fiscal year under review.
Whether the use of a 90% compliance standard was arbitrary, capricious,
and an abuse of discretion
Fiscal year 1984 was the fourth consecutive year that the State received
section 427 funds, and the second year that the State's compliance with
the section 427 requirements was reviewed. The compliance standard
applied to the FY 1981 review was 66%. Since that review found that the
State complied with the section 427 requirements in more than 80% of the
cases in the universe--the standard applied by the Agency in second-year
reviews--the Agency agreed not to conduct a FY 1982 review. For the FY
1984 review, the Agency applied the 90% standard applicable to triennial
reviews (reviews which the Agency stated it would perform after two
unreviewed years). The 90% standard was officially announced by ACYF in
PI 85-2, dated January 29, 1985, which was after the fiscal year in
question (FY 1984) but before the review for that year was conducted.
The State contended that the application of a 90% standard to the FY
1984 case record survey was arbitrary, capricious, and an abuse of
discretion because the standard was a substantive rule promulgated
without notice and comment rulemaking as required by section 553 of the
Administrative Procedure Act (APA), and because the 90% standard was
applied retroactively. As the State noted, however, the Board
considered and rejected the same arguments regarding the 90% standard in
Connecticut Dept. of Children and Youth Services, DAB No. 952 (1988).
The Board, relying in part on King v. Lynch, 550 F. Supp. 325 (D. Mass.
1982), found that--
the 90% compliance standard did not change the statutory
requirements; it was merely the level of compliance which the
Secretary decided as an administrative matter to enforce in
triennial reviews. [Footnote omitted.] The 90% standard was
therefore not a rule for which notice and comment rulemaking was
required. . . .
Connecticut, p. 8. The State made no showing here that this conclusion
was wrong as a matter of law. The Board also found in Connecticut that
retroactive application of the 90% standard was not prejudicial to
Connecticut, stating--
To argue that the State was harmed by the lack of notice would be
to admit that the State never intended to fully comply with the
statutory requirements, but had aimed instead for the 80% level of
compliance required in the prior review. Such an approach would be
inconsistent with the certification submitted by the State . . .
that it met the requirements of section 427.
Id., pp. 8-9. The State argued here that this "ignores the realities"
because Illinois passed the FY 1981 case record survey with a compliance
rate well over 80%. State's reply brief dated 5/16/88, p. 29. The
fact remains, however, that the existence of any compliance rate less
than 100% for purposes of the section 427 case record survey should not
have affected the State's efforts to comply fully with the statute.
Accordingly, we reaffirm our holding in Connecticut that the application
of a 90% compliance standard for triennial reviews was proper.
Conclusion
For the foregoing reasons, we sustain ACYF's determination that the
State was ineligible for FY 1984 section 427 funds.
________________________________
Judith A. Ballard
________________________________ Alexander G.
Teitz
________________________________ Cecilia Sparks
Ford Presiding Board