Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: West Virginia Department of Health Human Services
DATE: June 13, 1991
Docket No. 90-200 Decision No. 1257
DECISION
The West Virginia Department of Health and Human Services (State)
appealed
a determination by the Office of Human Development Services'
Administration
for Children, Youth and Families (ACYF) disallowing
$445,115.33 in federal
financial participation (FFP) claimed by the
State under title IV-E of the
Social Security Act (Act) for fiscal year
1985. 1/ The disallowance was
based on a review by ACYF of foster care
maintenance payments made on behalf
of children who were removed from
their homes and placed in foster care
pursuant to a court order. ACYF
found that, in 44 of a sample of 250
payments, the court orders lacked
either (1) a determination that
continuation in the home would be
contrary to the welfare of the child or (2)
a determination that
reasonable efforts were made to prevent the child's
removal from his
home, or both. Judicial determinations to this effect
are required by
section 472(a)(l) of the Act. ACYF arrived at the
disallowance amount
by projecting the results of this review to the universe
from which the
sample was drawn. ACYF subsequently stated that it had
determined that
one of the 44 sample payments (sample case #222) was in fact
eligible
for reimbursement under title IV-E, although it did not identify
the
resulting reduction in the disallowance amount. ACYF's brief
dated
2/1/91, p. 3, n. 3.
On appeal to this Board, the State disputed ACYF's findings
of
ineligibility with respect to 31 of the sample payments (in addition
to
the one which ACYF conceded was eligible). The State also
challenged
several aspects of the review procedure.
For the reasons discussed below, we reject the State's challenges to
the
review procedure. We also find that the required
judicial
determinations were made in the case of three of the 31
payments
contested by the State (sample cases #46, #91 and #180). 2/
Accordingly,
we reverse the disallowance pertaining to these three payments,
as well
as sample case #222, but uphold the disallowance to the extent it
is
based on the 40 sample payments which were either undisputed or which
we
find were ineligible.
We note at the outset that, in determining whether the State was
entitled
to receive FFP in the sample payments, we do not consider
whether the removal
of the child from home was appropriate. There is
evidence in some of
the cases in question here which could be used to
establish this fact.
However, Congress was concerned that children were
being moved too quickly
into a foster care system where they would then
sometimes languish for
years. Thus, as a check on the judgment of state
agency personnel or
others petitioning to have children placed in the
state's custody, Congress
made title IV-E funds available only for cases
in which the court issuing the
removal order specifically determined
that continuation in the home was
contrary to the child's welfare and
that reasonable efforts had been made to
prevent the child's removal
from the home. Accordingly, the issue
before us is not whether the
court could have made the requisite
determinations, but whether the
State documented that the requisite
determinations were in fact made,
and the conditions for title IV-E funding
met.
Below, we first describe the relevant statutory authority for the
judicial
determination requirement at issue in this appeal as well as
official ACYF
interpretations of that requirement. We proceed to
discuss the State's
arguments concerning the review procedure. We then
discuss in general
the State's grounds for asserting that the necessary
judicial determinations
were made by the courts. Finally, we discuss
whether those
determinations were made in the case of the individual
payments contested by
the State.
Relevant Authority and ACYF Interpretations
Under section 472(a)(1) of the Act, FFP is available in foster
care
maintenance payments for a child removed from the home of a
relative
only if, among other conditions --
the removal from the home . . . was the result of a
judicial
determination to the effect that continuation therein would
be
contrary to the welfare of such child and (effective October
1,
1983) that reasonable efforts of the type described in
section
471(a)(15) of this title have been made.
Section 471(a)(15) in turn requires that, effective October 1, 1983,
a
state plan under title IV-E must provide that --
in each case, reasonable efforts will be made (A) prior to
the
placement of a child in foster care, to prevent or eliminate
the
need for removal of the child from his home, and (B) to make
it
possible for the child to return to his home.
The requirement for a judicial determination to the effect
that
continuation of the child in the home would be "contrary to the
welfare
of such child" was continued from the foster care program
previously
funded under section 408 of the Act. The "reasonable
efforts"
requirement was added when the title IV-A foster care program
was
transferred to a new title IV-E by the Adoption Assistance and
Child
Welfare Act of 1980, Public Law 96-272. 3/
The legislative history of Public Law 96-272 makes clear that Congress
was
concerned that children were being removed from their homes
unnecessarily and
placed in foster care. In discussing the requirement
for a judicial
determination, the relevant Senate committee report
described such a
determination as "an important safeguard against
inappropriate [state] agency
action," and noted:
The committee is aware that the judicial
determination
requirement can become a mere pro forma exercise in
paper
shuffling to obtain Federal funding. While this could occur
in
some instances, the committee is unwilling to accept as
a
general proposition that the judiciaries of the States would
so
lightly treat a responsibility placed upon them by
Federal
statute for the protection of children.
Sen. Rep. No. 336, 96th Cong., 1st Sess. 16 (1979). On the
Senate
floor, Senator Cranston described the conference agreement as
follows:
In the past, foster care has often been the first
option selected
when a family is in trouble:
the new provisions will require
States to examine
alternatives and provide, wherever feasible,
home-based services that will help keep families together . . .
.
Of course, State child protective agencies will
continue to have
authority to remove immediately
children from dangerous situations,
but where
removal can be prevented through the provision of
home-based services, these agencies will be required to
provide
such services before removing the child and
turning to foster care.
125 Cong. Rec. 14767 (June 13, 1980).
ACYF regulations implementing Public Law 96-272 contained
provisions
requiring that states provide preplacement preventive services
and
describe in a child's case plan the services offered and provided.
45
C.F.R. Part 1356. The regulations did not elaborate on the
statutory
judicial determination requirement.
In a policy announcement issued on January 13, 1984, however, ACYF
did
address questions regarding the requirement for a
judicial
determination. The policy announcement stated that the
judicial
determination must be made "at the time of the removal of a child
from
his home" and explained:
The court, after hearing the evidence, must be satisfied
that
reasonable efforts . . . have been made. Review and approval
of
the [state] agency's report and recommendation alone are
not
sufficient to meet the requirements of the Act; the court
must
make a determination that the agency's efforts were, in
the
judgment of the court, reasonable for preventing placement.
With regard to emergency situations, if the agency's
judgment
was that services could not have prevented removal of the
child,
the court at the time of the adjudicatory hearing must find
that
the lack of preventive efforts was reasonable.
ACYF-PA-84-1, State Ex. CC, 4th page. ACYF also issued two
information
memoranda, ACYF-IM-87-28 (October 7, 1987) and ACYF-IM-89-08
(April 17,
1989), which discussed the circumstances under which ACYF would
accept
nunc pro tunc court orders as evidence that the requisite
judicial
determinations were made. 4/ State Exs. L and D.
Essentially, these
information memoranda made it clear that such orders would
be acceptable
only when used "to supply, for the record, something that has
actually
occurred, but was omitted from the record through inadvertence
or
mistake." ACYF-IM-87-27, State Ex. L, 1st page. This
information
memorandum further stated that --
Requested documentation may include the transcript of
court
proceedings and/or the agency's report to the court, or
any
other documentation that would confirm that the information
was
actually presented to the court at the previous hearing and
that
the court made the determination(s) at that time.
Id., 2nd page.
ACYF also issued an information memorandum transmitting a copy of
ACYF's
"Financial Review Guide For On-Site Reviews Of The Title IV-E
Foster
Care Program." ACYF-IM-85-25 (August 14, 1985), State Ex.
Z. The
review guide explains to reviewers that the court order (in
other than
voluntary placements) "must contain a statement to the effect
that
continuation of residence at home is contrary to the welfare of
the
child or that placement is in the best interests of the child."
(ACYF
had determined that these two phrases had the same meaning. See
State
Ex. W, p. 6.) The guide also explained that, after October 1,
1983, the
court order must state either that "reasonable efforts were made
to
prevent removal from the home" or "it was not appropriate or in the
best
interests of the child to prevent removal from the
home."
ACYF-IM-85-25, Attachment A, Title IV-E Foster Care Eligibility
Review
Checklist Guide, pp. 2-3.
The checklist for title IV-E reviews included in ACYF-IM-85-25 gave
rise
to questions about the judicial determination requirement which
were
addressed in ACYF-PIQ-86-02 (May 8, 1986), State Ex. W. That
issuance
explained circumstances which warranted a finding that the
appropriate
judicial determination had been made, even where the court order
itself
did not contain language to satisfy the statutory requirements.
The
issuance stated in pertinent part:
The fact that State laws include generic provisions referring
to
a class of children is not sufficient to satisfy
the
requirements of section 472, which relate to an
individual
determination for each child. However, if State
law
unambiguously requires that removal may only be based on
a
determination that remaining in the home would be contrary
to
the child's welfare (and in the appropriate circumstances,
that
removal can only be ordered after reasonable efforts to
prevent
removal have been made), it must be assumed that a judge
who
orders a child's removal from the home in accordance with
that
State law does so only for the reasons authorized by the
State
statute. This conclusion can be drawn only if the State
law
clearly allows removal under no other circumstances except
those
required under section 472(a)(1) of the Act. If a State
can
show that it has such a clear and unequivocal State law, and
if
the court order is expressly based on that law, then the
order
can be accepted as sufficient evidence that the
required
determinations have been made.
ACYF-PIQ-86-02, pp. 2-3 (emphasis in original). The issuance
also
explained that language in a petition submitted to a court would
not
suffice to meet the requirements unless the court order
expressly
adopted the relevant language of the petition and made clear that
a
judicial determination had been made. Id., p. 5.
Review Process
The review which led to the disallowance was conducted pursuant
to
ACYF-IM-85-25, supra. A brief outline of the review procedures was
also
issued earlier (ACYF-IM-85-4, dated January 25, 1985, at State Ex.
AA).
The guidelines prescribe a two-stage review process using a
random
sample of foster care maintenance "payment units" made by a state
during
a given period. In Stage I, ACYF reviews 50 payments. If
the
dollar-error rate (determined by dividing the dollars in error by
the
total dollar value of the payments reviewed) is greater than 10%,
then
ACYF determines the payment-error rate. If the latter rate exceeds
10%,
ACYF proceeds to Stage II and reviews a minimum of an additional
150
payments. For the Stage II review conducted in this case, ACYF
reviewed
250 additional payments. State Ex. I-B, 4th page. If
ACYF performs
only a Stage I review, only individual ineligible payments
identified in
that stage are disallowed. 5/ If a Stage II review is
performed, ACYF
extrapolates the Stage II errors to the universe from which
the sample
was drawn and disallows FFP in the payments found to be in
error.
The State took the position that the disallowance should not have
been
based on extrapolation from a sample. The State did not dispute
that
the dollar- and payment-error rates for the Stage I review exceeded
10%
based on the errors identified by ACYF. However, the State
asserted
that it had provided evidence in 1988 (after the Stage II review)
which
established that three Stage I payments found ineligible by ACYF were
in
fact eligible, and that this would bring the payment-error rate
below
10%. The State contended that the results of the Stage II review
should
therefore be ignored, and that only the ineligible payments
actually
identified in Stage I should be disallowed.
The State's argument that the results of the Stage II review should
be
ignored is flawed in several respects. First, it assumes that
the
evidence which the State provided established that in Stage I,
ACYF
incorrectly found three payments ineligible for title
IV-E
reimbursement. However, as discussed later, we find that one of
these
payments (sample case #25) was in fact ineligible, as originally
found
by ACYF. (ACYF agreed with the State that the two other payments
were
eligible. ACYF's brief dated 2/1/91, p. 3, n. 3.)
Accordingly, there
is no basis for the State's contention that the dollar-
and
payment-error rate criteria for proceeding to the Stage II review
were
not met.
Moreover, the State is mistaken that ACYF's policy was to proceed to
a
Stage II review only if a state meets the dollar- and payment-error
rate
criteria. While this is one basis for proceeding to a Stage II
review,
ACYF's issuances indicate that the decision whether to do so in
other
cases was a matter of agency discretion. ACYF's review guide
states in
pertinent part that --
[i]f the State systems do not appear to be operating
properly
(i.e., there is insufficient documentation available to
support
decisions on the use of title IV-E funds) or if the stage
one
review indicated errors in excess of established error rates,
a
stage two review must be conducted.
ACYF-IM-85-25, supra, p. 6. In addition, the earlier
information
memorandum states in pertinent part that --
[t]he Commissioner of the Administration for Children, Youth
and
Families may also decide, for reasons other than the
established
error rates, that a stage two review is required in a
given
State to adequately validate its systems and procedures, such
as
a system-wide error or the recurrence of errors found in
the
same State in a prior year.
ACYF-IM-85-4, supra, 3rd page. Thus, ACYF's policy would have
permitted
it to proceed to a Stage II in this case even if it had not
believed
that the State met the dollar- and payment-error rate criteria.
Further, at the time that the Stage II review was conducted, the State
had
not provided sufficient documentation to show that ACYF incorrectly
found the
State to meet the dollar- and payment-error rate criteria.
The documentation
on which the State relied was not submitted until the
latter half of 1988,
although the Stage II review was conducted in July
1987. See State's
brief dated 1/2/91, pp. 10-11; State Ex. F, H. The
State argued that
ACYF's practice has been to redetermine whether any
basis exists for a
disallowance even where a state submits additional
evidence as late as during
proceedings before the Board, citing
Connecticut Dept. of Children and Youth
Services, DAB No. 952 (1988).
However, the Board expressly stated in
Connecticut that it was not
deciding whether documents added to the case
record after the section
427 case review at issue there took place could
properly be considered
in determining whether the state was in compliance
with section 427
since it found that the documents were in the case record at
the time of
the review. Connecticut, supra, p. 23, n. 15.
Moreover, the documents
in question here (i.e., those provided for sample
case #25) are not
offered to establish that the results of the Stage II
review -- which
was comparable to the section 427 review in Connecticut --
were
incorrect, but merely to support the argument that ACYF should
ignore
the results of that review because the results of the Stage I
review
were incorrect. In our view, however, it would be contrary
to ACYF's
obligation to ensure that federal funds are properly expended to
ignore
a Stage II review which independently establishes that title
IV-E
payments were being made to ineligible children. Accordingly,
we
conclude that the disallowance was properly based on the results of
the
Stage II review conducted here. 6/
The State also challenged the review process on the ground that
ACYF
treated two or more payments which stemmed from a single court order
as
individual errors. The State identified several cases in which two
or
three payments on behalf of the same child were each counted as
errors
or separate payments on behalf of two or three siblings who were
removed
from home by the same court order were each counted as errors.
In the
State's view, this amounted to double- and triple-counting of one
error
and biased the sample in favor of ACYF. The State pointed out
that,
while ACYF's review guide required this counting method for the Stage
II
review, the guide provided that during a Stage I review, any
payments
other than the first for any child should be disregarded. See
ACYF-IM
85-25, supra, Attachment B, p. 3. The State noted that no
explanation
for the inconsistent treatment of such payments had been offered
by
ACYF.
ACYF responded by providing an affidavit from the Deputy Commissioner
of
the Administration for Children, Youth and Families which justified
the
use of a different counting method for the Stage I review on the
ground
that this review was intended to determine whether a state's title
IV-E
system was functioning properly, and not as "a statistically
valid
review for purposes of extrapolation." ACYF Ex. A. ACYF
also noted
that the review guide gave the State notice that the sample unit
for
purposes of the title IV-E review was each title IV-E payment.
Finally,
ACYF asserted that the burden was on the State to demonstrate that
the
projections were unreliable under generally accepted principles
of
statistical sampling, and that the State had not met that burden.
We conclude that ACYF's counting method was valid. The purpose of
the
Stage II review was to estimate the amount of foster care payments
made
for ineligible children, not the number of court orders which did
not
satisfy the judicial determination requirement. Thus, ACYF
properly
looked at all of the payments in the sample regardless of
whether
multiple payments pertained to a single child or otherwise resulted
from
a single error. This would not bias the estimate, since with a
random
sample, payments resulting from a single error should occur with
the
same frequency in the universe as in the sample. Moreover, we do
not
see any inconsistency in ACYF's use of a different counting method
for
the Stage I review given the fact that the two reviews served
different
purposes. Finally, as ACYF noted, the review guide clearly
specified
that the sample would be composed of payment units. Thus, the
counting
method used by ACYF was not arbitrarily adopted for the Stage II
review
at issue here but was consistently applied in the case of all Stage
II
reviews.
Judicial Determinations
The State made a number of general arguments related to how to
interpret
the judicial determination requirement and what documentation ought
to
be acceptable to show that the requirement was met. Specifically,
the
State argued that --
o Under ACYF's own interpretation in its review guide,
a
statement in a court order that removal is in the best
interests
of the child is sufficient to show that the court made
a
reasonable efforts determination.
o The State had a clear and unequivocal State law
requiring
that a child be removed only in circumstances where
the
requisite judicial determinations had been made, and ACYF
should
accept court orders which either explicitly referenced State
law
or which used language derived from State law.
o Since West Virginia law permitted a judge to issue a nunc
pro
tunc order only to correct mistakes, ACYF should presume
that
such orders were properly issued and evidenced a
judicial
determination made at the time of removal of the child.
Below, we discuss these general arguments first. We then apply
our
general conclusions to the specific documents offered by the State
as
evidence that the requisite judicial determinations were made
in
specific sample cases.
We note preliminarily that the issue in the individual cases is
whether
the State met the burden of documenting its claims for FFP in
the
payments, general notice of which was given by 45 C.F.R. Part
74,
Subpart H. Recipients of federal grant funds must meet this burden
even
in those cases where the grant program is actually carried out by
a
sub-grantee or contractor. See New York City Dept. of Human
Resources,
DAB No. 1199 (1990), p. 13. Thus, while we recognize that
the State
courts operated independently of the State agency, the State agency
was
nevertheless responsible for assuring that there was
adequate
documentation of the determinations required by section 472(a)(1) of
the
Act in any case for which it claimed FFP. The denial of FFP in
those
cases where there is inadequate documentation does not necessarily
mean
that the court's action was unsound or that the proper social work
was
not done, but simply represents a finding that the State agency
has
failed to document that its claims met the conditions
Congress
established as a prerequisite for title IV-E funding.
Congress
determined that it wished to fund foster care maintenance payments
only
where it can be assured that an impartial judge had determined
that
removal was necessary for the child's welfare and, if
feasible,
reasonable efforts had been made to prevent removal.
The reasonable efforts requirement
The State took the position that the reasonable efforts requirement
was
met by a statement in a court order that removal was in the child's
best
interests. This position was based on the wording of ACYF's
review
guide that the requirement could be met by a court order stating
that
"it was not appropriate or in the best interest of the child to
prevent
removal from the home." ACYF-IM-85-25, supra.
ACYF responded that this alternative language was meant to apply only
in
emergency situations. The State argued that ACYF was bound by its
own
interpretation and could not repudiate it.
In our view, the State's reading of the review guide is unreasonable.
The
language in the review guide has to be read in light of the
statutory
language, its legislative history, and ACYF's interpretation
issued in
1984. First, the statute requires a judicial determination to
the
effect that reasonable efforts to prevent removal "have been made,"
and that
a state plan provide for such efforts to be made "in each
case." While
Senator Cranston's remarks (quoted at p. 4 above) indicate
that Congress was
aware that in some situations immediate removal might
be necessary to protect
the child, the statutory wording and legislative
history as a whole indicate
that cases in which no effort is made should
be exceptional. ACYF thus
reasonably interpreted the reasonable efforts
requirement in its 1984 policy
announcement, when it said:
With regard to emergency situations, if the agency's
judgment
was that services could not have prevented removal of the
child,
the court at the time of the adjudicatory hearing must find
that
the lack of preventive efforts was reasonable.
ACYF-PA-84-1, supra. The State's interpretation of the review
guide
language as requiring only a best interests statement cannot
be
reconciled with the statutory provision, which clearly requires
a
reasonable efforts determination separate from the
best
interests/contrary to the welfare determination. The State's
argument
also lacks merit for the following reasons:
o The wording of the review guide can be reconciled with
ACYF's
earlier interpretation that, in emergency situations, the
court
could alternatively find that the state agency's lack of
efforts
was reasonable.
o While the review guide was sent to states for
their
information, nothing in the transmittal indicates any attempt
by
ACYF to change its interpretation of the reasonable
efforts
requirement.
o Since the review guide was not issued until August 14,
1985,
the State cannot reasonably argue that it relied on
its
provisions for the court orders here, which were issued prior
to
that date.
Accordingly, we conclude that a simple statement in a court order
that
removal is in the child's "best interests" is not sufficient to meet
the
reasonable efforts requirement. That requirement is met only if
the
court explicitly stated a finding to the effect that reasonable
efforts
had been made or that the lack of such efforts was reasonable due
to
emergency circumstances where immediate removal was necessary to
protect
the child.
State law
The State maintained that, at the time of most of the initial
removal
orders at issue here, West Virginia's Child Welfare and
Domestic
Relations Law unambiguously required that the courts ordering
the
removal of abused and neglected children, delinquent children,
and
children subject to domestic violence make findings that satisfied
the
contrary to the welfare and reasonable efforts requirements. 7/
Thus,
the State argued, ACYF's own policy in ACYF-PIQ-86-02 required ACYF
to
"assume" that any court that ordered a child's removal in
these
situations did so "only for the reasons authorized by the
State
statute." State brief dated 1/2/91, p. 36, quoting State Ex. W,
p. 3.
The State contended that even court orders which did not cite the
Child
Welfare Law were acceptable if they used terminology which appeared
in
the Child Welfare Law or referred to petitions which cited the
Child
Welfare Law. 8/
ACYF took the position that none of the court orders which the
State
provided should be accepted under this rationale. ACYF
correctly
pointed out that most of the court orders do not cite any specific
state
statutory provision. (Indeed, in some cases, the State itself did
not
identify the specific provision on which it was relying, but
generally
referred instead to the "delinquency provisions" or the "abuse
and
neglect provisions" of the Child Welfare Law.) Moreover, according
to
ACYF, the Act requires that express findings be in court orders and
does
not contemplate speculation by ACYF about what a court had in mind
when
it used terminology similar to that of State law.
As noted above, ACYF's own policy interpretation permits acceptance of
a
court order where (1) a state shows there is a "clear and
unequivocal"
state law permitting removal only where the findings required by
section
472 of the Act have been made; and (2) the court order is
"expressly
based on that law." ACYF-PIQ-86-02, supra, p. 3.
This policy is
consistent with the State's position that a court order may
contain
evidence that the court was expressly basing its decision on a
finding
required by state law, even if the court order does not
specifically
cite that law. Where there is no citation, however, it
must be clear
that the court intended to rely on a specific provision of
state law
when it issued the order.
While we examine below whether this standard was met on a
case-by-case
basis, some of the general reasons why we conclude in particular
cases
that it was not met are that: (1) the language of the court order
which
the State claimed was similar to the language of a particular
provision
of the Child Welfare Law appears in other provisions of the
Child
Welfare Law as well; (2) some language in the court order appears to
be
drawn from one provision of the Child Welfare Law while other
language
appears to be drawn from another provision of that statute; (3)
the
court's failure to follow all of the procedures specified in
the
provision of the Child Welfare Law which appears on the facts of
the
case to provide authority for the order calls into question whether
the
court was cognizant of this provision when it issued the order; or
(4)
the petition referred to in the order cited a definitional section
of
the Child Welfare Law or another provision other than that which
the
State claimed was applicable. In these situations, there is no
basis
for inferring that the court necessarily made any findings required by
a
particular provision of State law.
ACYF also challenged the State's position that the provisions of the
Child
Welfare Law the State said were referenced in particular court
orders
unambiguously required findings which satisfied the judicial
determination
requirement. 9/ We agree with the State that one
provision of the
Child Welfare Law, section 49-6-3(a), is unambiguous.
This section states
that the court may order the temporary custody of an
abused or neglected
child "if it finds that: (1) There exists imminent
danger to the
physical well-being of the child, and (2) there are no
reasonably available
alternatives to removal of the child, including,
but not limited to, the
provision of medical, psychiatric, psychological
or homemaking services in
the child's present custody." In effect, this
section requires the
court to determine that reasonable efforts to
prevent the child's removal
from the home were not possible because an
emergency situation existed, a
determination which satisfies the
reasonable efforts requirement. Thus,
we reverse ACYF's finding of
ineligibility in two cases (sample cases #46 and
#91) in which the court
order was clearly issued pursuant to this
section.
We conclude, however, that none of the other provisions on which the
State
relied unambiguously require findings which satisfy the
judicial
determination requirement. The State argued that sections
48-2A-1 and
49-1-1, the "Purpose" sections of the Domestic Relations Law and
the
Child Welfare Law, respectively, require reasonable efforts and
contrary
to the welfare findings. These sections contain a general
statement of
legislative purpose and do not specifically require a court to
make the
requisite findings in the context of any specific proceeding,
however.
In addition, the State relied on section 49-6-2(c), which applies to
abuse
and neglect proceedings generally, and states in pertinent part
that "[w]here
relevant, the court shall consider the efforts of the
state department to
remedy the alleged circumstances." However, this
language makes the
consideration of such efforts discretionary on the
part of a court.
Even if a court must consider preventive efforts under
this section, there is
nothing which requires the court to find, before
ordering the child's removal
from the home, that such efforts have been
made or that such efforts were not
possible due to an emergency
situation.
The State also relied on section 49-5-13(b), which requires a court
to
"give precedence to the least restrictive of the following
alternatives"
in placing a delinquent child, and lists alternatives including
(1)
referring "the child and the child's parent or custodian to a
community
agency for needed assistance . . . " and (2) prescribing a program
of
treatment or therapy. While this arguably requires the court
to
consider the option of providing services to prevent the child's
removal
from the home, it does not satisfy the reasonable efforts
requirement
since it does not require a determination by the court that
services
have already been provided or could not be provided due to an
emergency
situation.
We discuss our conclusion that various other provisions relied on by
the
State are ambiguous later in the context of the individual cases.
Nunc pro tunc orders
As discussed above, ACYF has a policy of accepting nunc pro tunc
(NPT)
orders only if they are in fact intended to correct a mistake in
the
original court order, i.e., the failure to reflect a
judicial
determination actually made at the time of entry of the original
order.
This policy is based on ACYF's view that the statute requires that
the
determination be made at the time of removal in order to protect
the
child. The State did not directly contest this policy, but argued
that
ACYF was not reasonable in requiring that the State support its
NPT
orders with contemporaneous documentation showing that the finding
was
made at the time of the original order. According to the State,
West
Virginia law permits issuance of a NPT order only to correct a
mistake
in an original order, and ACYF should assume that the judges issuing
the
NPT orders would follow this law.
ACYF argued that there was no reasonable basis for assuming that the
NPT
orders here reflected findings made at the time of the original
removal
orders. ACYF pointed out that all of the NPT orders submitted
by the
State were issued in 1988, after ACYF had performed its review.
ACYF
also pointed out that the motions for the NPT orders which
were
submitted by the State did not indicate that the NPT orders were
needed
to correct mistakes made previously. In discussing individual
cases,
ACYF also pointed out that the underlying contemporaneous
documentation
did not indicate that any evidence relevant to a reasonable
efforts or
contrary to the welfare determination was presented to the court
at the
time of the original order.
The State replied that by examining the underlying documentation, ACYF
was
impermissibly substituting its judgment for that of the court.
In
addition, the State cited the Board's decision in Idaho Dept. of
Health
and Human Welfare, DAB No. 1011 (1989), in support of the
State's
position that it should not be penalized with loss of FFP based
on
inadequate contemporaneous documentation.
We find that it is not reasonable under the circumstances here to
accept
the NPT orders on their face as showing that the requisite findings
were
made at the time of removal and simply mistakenly omitted from
the
original orders. Under the Act, title IV-E benefits are available
only
for a child removed from the home as a result of a
judicial
determination that continued residence in the home would be contrary
to
the welfare of the child, and, for children removed beginning October
1,
1983, that reasonable efforts to prevent the child's removal have
been
made. Thus, these judicial determinations must have been made at
the
time of the child's removal. The original court order, issued at
the
time of the child's removal, will obviously be the most
persuasive
evidence about whether a determination was made at that
time. In those
instances where the original order does not refer to the
necessary
determinations, a question would reasonably be raised as to whether
the
requisite judicial determinations were in fact made. Ordinarily,
any
material finding made by a court would be reflected in the court's
order
issued at the time. Indeed, the State had a financial incentive
here to
inform its judges that unless they made the determinations required
by
section 472 and reflected them in their orders, federal funding would
be
in jeopardy. Thus, a NPT order is acceptable only if it is
clearly
shown to have been issued to correct a mistake in the original
order
rather than to add findings not previously made, even if those
findings
could have been made based on the circumstances in a particular
case.
See Nebraska Dept. of Social Services, DAB No. 1250 (1991), pp.
8-9. We
cannot accept the NPT orders submitted here, without evidence
to
corroborate that the findings were made at the time of the
original
order, for the following reasons:
o The NPT orders here were not issued on any court's
own
motion, nor were any of them issued in response to a
question
about the original order raised, at the time it was issued,
by
someone participating in the judicial proceeding. Rather,
they
were obviously a response to the threat of disallowance,
issued
after a significant lapse of time at the request of the
State.
o In many cases, the NPT orders were not issued by the
same
judge who issued the original order. Thus, even if
evidence
which might have supported a reasonable efforts or contrary
to
the welfare determination was before the court at the time
the
original order was issued, a different judge could not
be
certain that the judge who issued the original order
actually
made such a determination.
o The motions for the NPT orders do not specifically ask
the
courts to find that a mistake was made in the original
orders.
Rather, they can be interpreted as asking the courts to
make
determinations on the basis of the allegations made in
the
motions. Some of the motions for NPT orders cite facts
which
could not have been before the court at the time of the
original
order since they relate to events occurring later. (See,
e.g.,
sample case #82, where the motion for the NPT order gave as
one
reason for the issuance of such an order that the child
in
question had been diagnosed as "failure to thrive," a
diagnosis
which was made after the issuance of the original
order. State
Ex. II-82, 5th and 7th pages.) 10/
o Chaney v. State Compensation Commissioner, 33 S.E. 2d
284,
(W. Va. 1945), cited by both parties, states that NPT orders
can
be issued in two kinds of cases: "[F]irst, where no
judgment
was actually rendered, although one might or ought to have
been;
second, where a judgment was actually rendered, but
never
entered or put upon the records." Id., at 286
(citations
omitted). Thus, the NPT orders here did not
necessarily reflect
a judicial determination which had already been
made, as
required by section 472(a)(1) of the Act.
o Chaney also states that the second type of NPT order can
be
lawfully entered only "upon a showing of some entry
or
memorandum upon the records or quasi records of the court
as
evidencing its prior action . . . ." Id. If this case
law were
followed, the State should be able to produce such an entry
or
memorandum evidencing action at the time of the original
order.
11/
Thus, in requiring contemporaneous evidence that the court actually
made
findings at the time of the original order, ACYF is not
improperly
substituting its judgment for that of the court on what would
constitute
reasonable efforts or whether continuation in the home was
contrary to
the child's welfare, but is simply requiring evidence that the
NPT order
was in fact issued to correct a mistake in the original order in
failing
to reflect a determination actually made at the time. 12/
This conclusion is not inconsistent with the Board's decision in
Idaho,
supra. One issue there was whether Idaho had provided adequate
evidence
that periodic case reviews or dispositional hearings required by
section
427 of the Act were held. In the case of each of the four
children in
question, Idaho furnished affidavits prepared for purposes of the
appeal
as well as some contemporaneous documents. The Board found that
in each
case, "the written, contemporaneous record contains some
information
about a proceeding which was scheduled or held and the affidavits
merely
provide clarification of the scope or nature of the proceeding or
who
participated." Idaho, supra, p. 6. It was in this context
that the
Board made the statement, relied on by the State here, that "[g]iven
. .
. the fact that a State does not have total control over how its
workers
and the courts record and preserve evidence of what they do, it does
not
appear warranted for ACYF to fail every case where the
contemporaneous
documentation is not complete." Id. Thus, there
is nothing in that
decision which supports the State's view that we should
accept the NPT
orders on their face.
The foregoing analysis applies to the sample cases discussed below.
Thus,
in addressing the State's argument in those cases that the NPT
orders
satisfied the judicial determination requirement, we discuss only
whether the
contemporaneous documentation submitted, if any, was
sufficient to establish
that this requirement was met.
Individual Sample Cases
Below, we consider the individual sample cases. The first
case
discussed, sample case #25, was part of the Stage I sample and was
not
included in the cases for which the payments were extrapolated to
obtain
the disallowance amount. As previously noted, we conclude that
ACYF
correctly found sample case #25 ineligible and therefore reject
the
State's argument that the results of the Stage II sample should
be
ignored. The remaining sample cases were included in the Stage
II
sample. We uphold the disallowance pertaining to the majority of
sample
cases, which we conclude were ineligible, and reverse the
disallowance
with respect to the few sample cases (#46, #91 and #180) which
we
conclude were eligible, as well as sample case #222, which ACYF
accepted
as eligible.
Sample Case #25
This case relates to a payment for care received by a child placed in
the
State's temporary custody pursuant to a court order dated 11/23/83.
13/
The order stated that "it was announced to the court" that the
child admitted
to being a juvenile delinquent for the acts set forth in
the petitions, and
that the child, his mother and his counsel "believe
it to be in the best
interest of the juvenile if the prior order" of the
court "were amended and
modified to provide for custody of the infant to
be placed in the West
Virginia Department of Human Services for
placement in a foster home."
The order further stated that the court
"finds that there is clear and
convincing proof that there has been a
substantial violation of the terms of
probation and that the infant's
best interest would be served by a change of
the prior order of this
court." The court therefore ordered that
custody of the child "be
removed from his mother and placed with the West
Virginia Department of
Human Services for placement in a foster home."
State Ex. II-25, 1st
and 2nd pages. The record shows that the child had
been placed on
probation in 1982 for destruction of property and that the
petitions
referred to in the 11/23/83 order asked for modification of the
court's
1982 order on the basis that the child had violated the terms of
the
probation. State Ex. II-25, 19th, 22nd, and 25th pages. ACYF
found
that the child was ineligible for title IV-E payments because
the
11/23/83 order did not contain a reasonable efforts determination.
The State argued that 1) the "best interest" finding in the 11/23/83
order
satisfied the reasonable efforts requirement under ACYF's own
interpretation
in its review guide; 2) the 11/23/83 order was based on
section 49-5-13 of
the Child Welfare Law, which required findings which
satisfied the reasonable
efforts requirement; and 3) the NPT order
issued 6/16/88 stated that
reasonable efforts to prevent the child's
removal from the home were not
possible, and thus corrected the omission
of a reasonable efforts
determination from the 11/23/83 order. We
reject all three
arguments.
As discussed previously, there is no basis for the State's
interpretation
of ACYF's review guide as permitting a "best interest"
finding to satisfy the
reasonable efforts requirement. Instead, the
court order must indicate
that the court determined that preventive
services had been provided or,
alternatively, that removal from the home
was due to an emergency situation
where preventive efforts were not
possible, as stated in the NPT order
here. Here, there was no reference
to preventive efforts in the
11/23/83 order and removal from the home
was with the consent of the
mother. There is no evidence that an
emergency situation existed so
that removal was necessary to protect the
child.
Although the State relied on section 49-5-13 of West Virginia's
Child
Welfare Law in arguing that findings which satisfied the
reasonable
efforts requirement were made by the court, the 11/23/83 order
does not
cite any provisions of the Child Welfare Law. The order refers
to the
child's "best interests," a term used in section 49-5-13; however,
this
is not sufficient to indicate that the court was applying that
section
in view of other language in the order regarding "clear and
convincing
proof." This indicates that the court may instead have been
applying
section 49-5-14, which permits a court to modify an order to provide
for
a more restrictive alternative "if it finds clear and convincing
proof
of substantial violation" of a prior court order. Even if the
court was
applying section 49-5-13, this section does not require findings
which
satisfy the reasonable efforts requirement for the reasons
previously
discussed. Moreover, it is arguable that, in a situation
such as that
here, where the child and his mother agreed to placement with
the State,
the court need not have specifically rejected the alternative
of
providing services to prevent removal. Thus, we conclude that
the
11/23/83 order did not satisfy the reasonable efforts requirement
by
relying on State law.
In addition, we find the NPT order insufficient to show that the
court
made a reasonable efforts determination at the time of the
removal. The
only contemporaneous documentation in the record is a
probation
officer's report prepared about a year after the 1981 incident,
before
any violation of probation. State Ex. II-25, 25th - 27th
pages. Even
if this report was considered by the court when it issued
the 11/23/83
order, the report does not refer to any reason why services
could not
have been provided to prevent the child's removal from the home,
as
stated in the NPT order. 14/
Sample Cases #12 and #19
Sample case #12 relates to a $100 payment for care received 1/31/85 by
a
child placed in the State's temporary custody pursuant to a court
order
dated 12/18/84. Sample case #19 relates to a $144 payment made
for care
received 5/1/85 by the same child. The 12/18/84 order noted
that a
"Petition will be filed alleging [the child and her sisters] to
be
neglected" and "the Court finds that immediate temporary custody of
the
said children should be granted to the West Virginia Department of
Human
Services pending a hearing upon the petition . . . ." State Ex.
II-12,
1st page. The petition on which the order was based stated that
the
children's "physical & mental condition is in danger by the
present
failure or inability of the mother to provide proper environment"
for
them, noting allegations by the children that the mother left them
alone
at night, administered excessive corporal punishment, furnished
them
with marijuana and committed sexual acts in their presence. State
Ex.
II-12, 8th page. ACYF found that the child was ineligible for
title
IV-E payments because the 12/18/84 order did not contain a
reasonable
efforts determination.
The State argued that 1) the 12/18/84 order was based on section
49-6-3(a)
of the Child Welfare Law, which required findings which
satisfied the
reasonable efforts requirement; and 2) the NPT order
issued 9/2/88 stated
that reasonable efforts were made to prevent the
child's removal from the
home, and thus corrected the omission of a
reasonable efforts determination
from the 12/18/84 order. We reject
both arguments.
As previously discussed, section 49-6-3(a) requires a court to make
a
reasonable efforts determination before ordering the State to
take
temporary custody of an abused or neglected child. However,
the
12/18/84 order does not cite any provisions of the Child Welfare
Law.
The State nevertheless argued that the 12/18/84 order was based
on
section 49-6-3(a) since the order referred to "temporary custody."
We
disagree. While section 49-6-3 is captioned "Temporary Custody,"
there
are other provisions of the Child Welfare Law which also use this
term.
Moreover, while section 49-6-3(a) applies "[u]pon the filing of
a
petition," the 12/18/84 order states that a petition "will be filed."
In
addition, section 49-6-3(a) requires that the order granting custody
also
appoint counsel and schedule a preliminary hearing. The fact that
the
12/18/84 order did not do this raises a further question concerning
whether
the court was applying this provision.
We also find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
only
contemporaneous documentation in the record is the social worker's
notes
of her testimony before the judge on 12/17/84 (at State Ex. IV-12,
p.
4). However, there is no indication in the notes that the social
worker
testified that preventive services were provided or that the court
found
they had been (as stated in the NPT order). Thus, there is no
evidence
that the court made a reasonable efforts determination.
Sample Cases #13 and #17
Sample case #13 relates to a $127 payment for care received in 2/85 by
a
child placed in the State's temporary custody pursuant to a court
order
dated 8/23/84. Sample case #17 relates to a payment in the same
amount
for a sibling who was the subject of the same order. The order
stated
that a petition had been filed alleging the children to be neglected
and
that the petitioner had testified and the court "finds that
immediate
temporary custody of said children should be granted" to the
State
pending a hearing on the petition. State Ex. II-13. The
petition to
which the order referred stated that the children's mother had
been
incarcerated the day before on preliminary charges, that the
father's
whereabouts were unknown, and that the mother had been the subject
of
numerous child protective referrals but had left the jurisdiction
before
services could be provided. State Ex. II-13, 8th page. The
children
had stayed one night with their grandfather, who indicated that he
could
not keep them on a long-term basis since his wife was ill. State
Ex.
IV-13, 8th page. ACYF found that the children were ineligible for
title
IV-E payments because the 8/23/84 order did not contain a
reasonable
efforts determination.
The State argued that 1) the 8/23/84 order was based on section
49-6-3(a)
of the Child Welfare Law, which required findings which
satisfied the
reasonable efforts requirement; and 2) the NPT order
issued 9/2/88 stated
that reasonable efforts to prevent the children's
removal from the home were
made, and thus corrected the omission of a
reasonable efforts determination
from the 8/23/84 order. We reject both
arguments.
The 8/23/84 order does not contain a citation to any provisions of
the
Child Welfare Law. The State nevertheless argued that this order
was
based on section 49-6-3(a) since the order refers to
"temporary
custody." However, as noted above, other provisions of the
Child
Welfare Law also refer to temporary custody. Moreover, the
8/23/84
order did not appoint counsel and schedule a hearing within 10 days
as
required by section 49-6-3(a). This raises a further question as
to
whether the court was invoking that section. 15/
We also find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
only
contemporaneous documentation in the record is the petition for
the
8/23/84 order. While the order referred to the petition, the court
did
not adopt as findings the facts alleged in the petition. Thus, even
if
the court would have made a reasonable efforts determination based
on
those facts, we cannot conclude that such a determination was made
here.
Sample Case #30
This case relates to a $144 payment for care received in 10/84 by a
child
placed in the State's custody pursuant to a court order dated
5/15/84.
The order granted a motion for a one-year improvement period
for the child
"pursuant to [section] 49-5-9(b)" of the Child Welfare
Law, which provides
that, after probable cause has been found that a
child is delinquent, the
court may delay an adjudicatory hearing and
allow an improvement
period. In addition, the order stated an "opinion
that the parents of
the said child cannot provide the necessary
supervision and care of the child
and that the best interest and welfare
of the child and of the State of West
Virginia will be served by
committing him to the custody of the West Virginia
Department of Human
Services." The order thus granted temporary custody
of the child to the
Department of Human Services for a six-month
period. State Ex. II-30.
The record indicates that several weeks prior
to the 5/15/84 order, the
child was arraigned on a charge of breaking and
entering. State Ex.
II-30, 6th page. ACYF found that the child
was ineligible for title
IV-E payments on the ground that the 5/15/84 order
did not include a
reasonable efforts determination.
The State argued that 1) the reference to the child's "best interest"
in
the 5/15/84 order satisfied the "reasonable efforts" requirement; 2)
the
5/15/84 order was based on section 49-5-13(b)(4) of the Child
Welfare
Law, which required findings which satisfied the reasonable
efforts
requirement; and 3) the NPT order issued 7/19/88 stated that efforts
to
prevent the child's removal from the home were not possible under
the
circumstances, and thus corrected the omission of a reasonable
efforts
determination from the 5/15/84 order. We reject all three
arguments.
As discussed earlier, the State's reliance on its interpretation of
ACYF's
review guide is misplaced. The "best interest" finding cannot
satisfy
the reasonable efforts requirement here since the order does not
indicate
that the court determined that reasonable efforts to prevent
the child's
removal were not possible (as stated in the NPT order) due
to an emergency
situation.
There is also no basis for the State's position that the 5/15/84
order
complied with the reasonable efforts requirement because it was
issued
pursuant to section 49-5-13(b)(4) of the Child Welfare Law. The
order
itself cites section 49-5-9(b) of the Child Welfare Law. The
State
nevertheless relied on the fact that the language of the order
was
similar to that of section 49-5-13(b)(4), which states in part
that
"[u]pon a finding that a parent or custodian . . . cannot provide
the
necessary supervision and care of the child, the court may . .
.
temporarily commit the child to the state department of a child
welfare
agency. . . ." However, as indicated previously, section
49-5-13 does
not require a determination that the lack of efforts to prevent
the
child's removal from the home was due to an emergency situation,
as
required by section 472(a)(1) of the Act. Thus, even if the court
was
following section 49-5-13(b)(4), this would not avail the State.
Finally, we find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
record
does not contain any contemporaneous documentation which might
show that such
a determination was made.
Sample Case #46
This case relates to a $161 payment for care received in 6/85 by a
child
placed in the State's temporary custody pursuant to a court order
dated
1/22/85. The order stated that, based on a petition filed with
the
court, there was "probable cause to believe that the child was an
abused
child and that there are no reasonably available alternatives to
placing
custody of the child" with the State. State Ex. II-46, 1st
page. The
court therefore ordered that temporary custody be awarded to
the State
until the date set by the order for a hearing on the
petition. The
court also appointed counsel for the child. State
Ex. II-46, 1st page.
The petition on which the 1/22/85 order was based
alleged that the State
agency had received complaints concerning abuse of the
child by both the
child's mother and father, and that the child was "in
imminent danger in
the home because of the unexplained death of her brother,"
who was found
dead in his mother's custody on the day preceding the
order. State Ex.
IV-46, 5th page. ACYF found that the child was
ineligible for title
IV-E payments because the 1/22/85 order did not contain
a reasonable
efforts determination.
The State argued that 1) the language of the 1/22/85 order showed that
a
reasonable efforts determination had been made; 2) the 1/22/85 order
was
based on section 49-6-3 of the Child Welfare Law, which
required
findings which satisfied the reasonable efforts requirement; and 3)
a
NPT order dated 8/2/88 stated that efforts to prevent the
child's
removal from the home were not possible under the circumstances,
and
thus corrected the omission of a reasonable efforts determination
from
the 1/22/85 order. We conclude that the reasonable efforts
requirement
was met because the court acted pursuant to section 49-6-3 of the
Child
Welfare Law. In view of this conclusion, we need not address
the
State's other arguments.
Although the 1/22/85 order does not cite section 49-6-3, the language
of
the order closely follows the language of section 49-6-3(a),
including
references to an "abused child" and to the lack of "reasonably
available
alternatives" to State custody. Moreover, as required by
section
49-6-3(a), the order sets a date for a hearing within 10 days
and
appoints counsel to represent the child. Thus, we conclude
that the
court was acting pursuant to this section. Since this section
requires
a reasonable efforts determination in order to place the child in
the
State's custody (see prior discussion), the court order complied
with
the requirement for such a determination.
Sample Case #72
This case relates to a $1,460 payment for care received in 4/85 by a
child
placed in the State's temporary custody pursuant to a court order
dated
9/21/84. The order stated that the court had been informed at a
hearing
in the case that all parties, including the child and her
mother, had agreed
that the appropriate action would be to grant
temporary custody of the child
to the State agency. State Ex. II-72,
1st page. The petition
which gave rise to the order was filed by the
State agency and stated that
the child's mother believed that the child
was "incorrigible beyond control
and fails to respond to her lawful
supervision; that because of such
allegations, the mother of said child
refuses to provide necessary shelter
and therefore the said child is in
need of the appointment of a
guardian." State Ex. II-72, 12th page.
ACYF found that the child was
ineligible for title IV-E payments because
the 9/21/84 order did not contain
a reasonable efforts determination.
The State argued that 1) the 9/21/84 order was based on the abuse
and
neglect provisions of the Child Welfare Law, which required
findings
which satisfied the reasonable efforts requirement; and 2) the NPT
order
issued 9/2/88 stated that reasonable efforts to prevent the
child's
removal from the home were not possible under the circumstances,
and
thus corrected the omission of a reasonable efforts determination
from
the 9/21/84 court order. We reject both arguments.
There is no express mention in the 9/21/84 order of any provisions of
the
Child Welfare Law. The State noted, however, that the petition for
the
order as well as the hearing notices issued by the court clerk prior
to
issuance of the order referred to sections of the Child Welfare Law.
The
petition referred to sections 49-6-3 and 49-6-5 while the notices
referred to
section 49-6-1. It is nevertheless unclear whether the
court was acting
pursuant to any of these provisions since they pertain
to abused or neglected
children while the order identifies the case as a
"Delinquency/Neglect"
case. Moreover, even if the court was acting
pursuant to the abuse and
neglect provisions, it is not clear that a
reasonable efforts determination
was made. Section 49-6-5(a)(4), which
may have been applicable given
the facts here, permits the court to
"commit the child temporarily to the
custody of the state department" if
the court finds "that the abusing parent
or parents are presently
unwilling or unable to provide adequately for the
child's needs. . . ."
Where, as here, the parent wished to relinquish custody
of the child, it
is arguable that the court might not have thought it
necessary to
address whether reasonable efforts to prevent the child's
removal from
the home were possible. Thus, we cannot conclude that a
reasonable
efforts determination was made because the court relied on State
law.
We further find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
only
contemporaneous documentation in the record is the petition for
the
9/21/84 order. That order does not even refer to the petition,
however,
so that even if the court would have made a reasonable
efforts
determination based on the facts alleged in the petition, there
is
insufficient evidence that such a determination was made.
Sample Cases #80 and #86
Sample case #80 relates to a $227 payment for care received in 2/85 by
a
child placed in the State's temporary custody pursuant to a court
order
dated 4/29/80. Sample case #86 relates to a $227 payment for
care
received in 8/85 by the same child. The order granted a divorce to
the
child's parents and gave temporary custody of the child to the
State
agency until the completion of an investigation of the home and
home
conditions of the mother, father, and grandmother, at which time
the
question of the child's custody was to be determined. The order
stated
that, until that time, the child and her sibling were "either to be
left
in the home of the defendant [their mother] . . . [or] of
said
children's grandmother. . . ." State Ex. II-80, 1st and 2nd
pages.
ACYF found that the child was ineligible for title IV-E payments
because
the 4/29/80 order did not contain a contrary to the
welfare
determination.
The State argued that a NPT order dated 6/30/88 which stated
that
continuation in the home is contrary to the welfare of the
child
corrected the omission of this determination from the 4/29/80
order. We
reject this argument on the ground that the 4/29/80 order
does not
require the child to be removed from her home. Instead, the
order gives
the State agency the choice of placing the child in either the
mother's
or the grandmother's care. It appears that the child was
already in the
mother's home, since the motion for the NPT order states that
the mother
failed to answer an amended complaint seeking to deprive her of
custody
of the children. State Ex. II-80, 5th page. Since the
order did not
require the child to be removed from her home, the court
clearly did not
make a determination that continuation in the home was
contrary to the
welfare of the child. Thus, even if the child was in
fact removed from
her home, she was not eligible for title IV-E payments.
Sample Cases #82, #83 and #84
Sample case #82 relates to a payment for care received in 6/85 by a
child
placed in the State's temporary custody pursuant to a court order
dated
6/9/84. 16/ Sample case #84 relates to a $127 payment for
care
received in 7/85 by the same child. Sample case #83 relates to a
$127
payment for care received in 6/85 by the sibling of the child in
case
#82, who was placed in the State's custody by the same order. The
order
stated that "upon a personal examination of the children,"
the
magistrate "is of the opinion that children are of eminent
[sic]
physical harm and that they have been abused." The court
therefore
ordered the State agency to "take custody of the children until
Monday,
June 11, 1984, when they shall appear before the Judge of the
Circuit
Court." State Ex. II-82, 1st page. A petition dated
6/9/84 stated that
the older child, a two-year-old, had been beaten recently
by the
boyfriend with whom the mother and children were living and the
younger
child, a two-month-old, had not been fed any milk for a day.
The
petition requested that the children be placed in the court's
custody
pending a hearing to determine whether the children were neglected
or
abused children. State Ex. II-82, 15th and 16th pages. This
petition
was likely filed after the issuance of the magistrate's order and
was
the basis for the issuance of an order on 6/11/84 continuing the
State's
custody. See State Ex. II-82, 12th page. The record also
indicates
that the State agency took "emergency custody" of the children the
day
before the 6/9/84 order was issued. State Ex. II-82, 7th
page. ACYF
found that the children were ineligible for title IV-E
payments because
the 6/9/84 order did not contain a reasonable efforts
determination.
The State argued that 1) the language of the 6/9/84 order indicated
that
the court made a reasonable efforts determination; 2) the 6/9/84
order
was based on the abuse and neglect provisions of the Child Welfare
Law,
which required findings which satisfied the reasonable
efforts
requirement; 3) a NPT order issued 9/21/88 stated that
reasonable
efforts were made to prevent the children's removal from their
home, and
thus corrected the omission of a reasonable efforts determination
from
the 6/9/84 order; and 4) court orders subsequent to the 6/9/84
order
indicated that reasonable efforts had been made to reunite the
family
and should have been treated as satisfying the reasonable
efforts
requirement under ACYF's own policy. We reject all four
arguments.
We see nothing in the language of the 6/9/84 order which constitutes
a
reasonable efforts determination. There is no reference to
the
provision of any services to prevent the removal of the children
from
their home. The State argued that a reasonable efforts
determination
had been made since the magistrate who issued the original
order based
his opinion that the children were abused and in imminent danger
of
physical harm "upon a personal examination of the children. . .
."
However, there is no evidence concerning the magistrate's
specific
findings based on this examination.
The 6/9/84 order does not cite any provisions of the Child Welfare
Law.
The State nevertheless argued that the order must have been
issued
pursuant to the abuse and neglect provisions because it used the
words
"physical harm" and "abused" and because the petition referred to in
the
order cited the definition in the Child Welfare Law of an abused
or
neglected child. Given the facts of the case, it appears that the
order
may have been issued pursuant to section 49-6-3(c). That
section
authorizes a magistrate to ratify the "emergency custody" taken by
a
child protective service worker who finds the child "in an
emergency
situation which constitutes an imminent danger to the
physical
well-being of the child . . . and . . . had probable cause to
believe
that the child . . . will suffer additional child abuse or neglect .
. .
before a petition can be filed and temporary custody can be ordered. .
.
." Upon the magistrate's order, emergency custody is vested in
the
State agency until the end of the next judicial day unless a petition
is
filed. However, it is unclear how the court's reliance on this
section
would support the statement in the NPT order that reasonable
efforts
were made since the section applies to removal in an emergency
situation
(although the section does not expressly require that the
magistrate
himself make the finding made by the child protective services
worker in
order to ratify the emergency custody). Thus, we cannot
conclude that a
reasonable efforts determination was made even if the court
was
following this provision.
We also find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. 17/
The
only contemporaneous documentation in the record is the petition
dated
6/9/84. This petition asked that the State be given temporary
custody
of the child pending a determination about whether "the conditions
[in
the home] can be corrected. . . ." State's Ex. II-82, 14th
page. Thus,
it is unlikely that the court found that reasonable efforts
had already
been made to prevent the child's removal, as stated in the NPT
order.
We further conclude that subsequent court orders did not satisfy
the
requirement for a reasonable efforts determination. The State
referred
to orders dated 7/17/84 and 8/15/84; however, it appears that the
first
order was issued 7/18/84. This order indicates that, after a
hearing,
the parties had met and agreed upon an improvement plan, while
the
second order, issued after a hearing on the progress of the
case,
approves the improvement plan. The ACYF guidelines on which the
State
relied stated in pertinent part that --
subsequent court orders (but no later than the month
being
reviewed) should be investigated to determine whether there
has
been a judicial determination to the effect that
reasonable
efforts had been made to reunite the child with his
family. If
there is such a determination, the child becomes
eligible for
FFP from the beginning of the month in which that
determination
is made.
ACYF-IM-85-25, supra, Attachment A, p. 3 (emphasis in the original).
ACYF
took the position that this policy was inapplicable here because
the payments
were made before the orders were issued. The record
indicates that the
orders were issued approximately a year before the
claims in question were
filed. 18/ See State Ex. II-82, 13th page. 19/
However, while the
improvement plan may have anticipated that services
would be provided to help
reunite the family, ACYF policy requires that
subsequent court orders find
that reasonable efforts to reunite the
family had already been made.
Thus, there is no basis for concluding
that the court made a reasonable
efforts determination when it issued
either of the orders relied on by the
State.
Sample Case #87
This case relates to a $1,460 payment for care received in 12/84 by
a
child placed in the State's custody pursuant to a court order
entered
10/14/83. The order found that "the least restrictive
alternative
consistent with the rehabilitative interests of the infant
respondent
and the interests of society" was commitment of the child "to
the
custody of the Department of Human Services for assignment to the
Sugar
Creek Children's Home." The order indicated that this finding was
made
"pursuant to" the child's unopposed motion that the court find that
this
facility was "the least restrictive dispositional alternative
herein."
State Ex. III-87, 1st and 2nd pages. The record shows that on
8/8/83,
the child had been adjudged a delinquent child based on his plea
of
guilty to a charge of grand larceny. He had previously been placed
on
probation based on charges of breaking and entering. State's
Ex.
III-87, 7th and 9th pages. ACYF found that the child was ineligible
for
title IV-E payments because the 10/14/83 order did not contain
a
reasonable efforts determination.
The State argued that 1) the language of the 10/14/83 order
indicated
that the court made a reasonable efforts determination; 2) the
10/14/83
order was based on section 49-5-13(b)(5) of the Child Welfare Law,
which
required findings which satisfied the reasonable efforts
requirement;
and 3) a NPT order dated 9/29/88 stated that reasonable efforts
were
made to prevent the child's removal from the home, and thus
corrected
the omission of a reasonable efforts determination from the
10/14/83
order. We reject all three arguments.
We see nothing in the language of the 10/14/83 order which indicates
that
a reasonable efforts determination was made. There is no reference
to
the provision of services to prevent the child's removal from the
home.
The State argued that it was implicit in the order that the less
restrictive
alternative of keeping the child in the home "was not
appropriate or in the
best interests of the child." State's brief dated
1/2/91, p. 33.
This appears to be a reference to ACYF's review guide,
which the State argued
permitted a "best interests" finding to satisfy
the requirement for a
reasonable efforts determination. However, as
previously indicated,
there is no basis for this argument, and in any
event, the order itself does
not use any "best interests" language.
In addition, we find no merit in the State's argument that a
reasonable
efforts determination was made because the court acted pursuant
to
section 49-5-13(b)(5) of the Child Welfare Law. This section
authorizes
the court, "[u]pon a finding that no less restrictive alternative
would
accomplish the requisite rehabilitation of the child, and upon
an
adjudication of delinquency . . . [to] commit the child to an
industrial
home or correctional institution for children." The State
noted that
the 10/14/83 order used similar language, referring to "the
least
restrictive dispositional alternative. . . ." However, as
discussed
previously, this section does not unambiguously require findings
which
satisfy the reasonable efforts requirement. Moreover, the
court's
finding that commitment of the child was the least
restrictive
alternative was made pursuant to the child's motion to that
effect,
which the mother did not oppose. Under these circumstances, the
court
did not necessarily have to consider other dispositional
alternatives,
including the provision of preventive services. 20/
Finally, we find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal.
The
only contemporaneous documentation in the record is the
counselor's
report requested by the court when it found the child to be a
delinquent
child. This report, which recommended against commitment to
a
correctional institution, did not indicate that any services had
been
provided to prevent removal, as stated in the NPT order. State
Ex.
III-87, last three pages. Sample Cases #89 and #90
Sample case #89 relates to a $207 payment for care received in 2/85 by
a
child placed in the State's temporary custody pursuant to a court
order
dated 1/25/74. Sample case #90 relates to a $207 payment for
care
received in 3/85 by the same child. The 1/25/74 order stated that
a
social worker and prosecutor had appeared and asked leave to file
a
petition "setting forth the fact that . . . [the child and her
siblings]
are neglected children for the reasons set out in said petition. .
. ."
State's Ex. IV-89. The order further ordered "[u]pon
consideration
thereof" that the children were to be placed in the temporary
custody of
the State agency pending a hearing. The petition referred to
alleged
that all of the children were in need of medical attention, that
the
children were allowed to go barefoot and poorly dressed in very
cold
weather, that the parents were separated, that the mother was ill
and
not capable of taking care of the children at present, and stated
"the
opinion that if said infants are allowed to remain at the
residence
under the present circumstances, it will be injurious to their
health
and welfare." State Ex. III-89, 5th and 6th pages. ACYF
found that the
children were ineligible for title IV-E payments because the
1/25/74
order did not contain a contrary to the welfare determination.
The State argued that a NPT order issued 6/14/88 which stated
that
continuation in the home is contrary to the welfare of the
child
corrected the omission of a contrary to the welfare determination
from
the 1/25/74 order.
We disagree. There is nothing on the face of the NPT order
which
indicates that it was issued to correct a mistake. The
only
contemporaneous documentation in the record is the petition which
gave
rise to the 1/25/74 order. While this petition stated an "opinion"
that
it would be "injurious to the children's health and welfare" if
they
were permitted to remain at home, there is no basis for concluding
that
the court adopted this opinion in issuing the 1/25/74 order since
the
order indicates at most that the court considered the reasons set
forth
in the petition for finding that the children were neglected
children
and ordered temporary custody. The petitioner's opinion that
it would
be contrary to the children's welfare to remain in the home is not
a
part of the reasons given in the petition for a finding of neglect,
nor
was it otherwise expressly adopted by the court or made a basis for
the
court's order. Accordingly, we reject the State's contention that
a
contrary to the welfare finding was made by the court when it issued
the
1/25/74 order.
Sample Case #91
This case relates to a $322 payment for care received on 5/1/85 by a
child
placed in the State's custody pursuant to a court order dated
10/17/83.
The order stated that --
the Court finds there is good reason to believe that . . .
[the
child] is an abused and neglected child. It appearing to
the
Court that there exists eminent [sic] danger to the physical
and
emotional well-being of said infant child . . . , and that
there
is no reasonable, available alternative to removal of
said
child, the Court ORDERS the immediate transfer of the custody
of
. . . [the child] to the West Virginia Department of
Human
Services, for appropriate placement pending hearings in
this
matter.
State Ex. III-91, 2nd page. The record indicates that a petition
was
filed by the State agency alleging that the child had been
sexually
abused or assaulted by her father. State Ex. IV-91, 1st
page. ACYF
found that the child was ineligible for title IV-E payments
because the
court order did not contain a reasonable efforts
determination.
The State argued that 1) the language of the 10/17/83 order indicated
that
the court made a reasonable efforts determination; 2) the 10/17/83
order was
based on section 49-6-3(a) of the Child Welfare Law, which
required findings
which satisfied the reasonable efforts requirement;
and 3) a NPT order dated
6/22/88 stated that reasonable efforts to
prevent placement were not possible
under the circumstances, and thus
corrected the omission of a reasonable
efforts determination from the
10/17/83 order. We conclude that a
reasonable efforts determination was
made because the court acted pursuant to
section 49-6-3(a). In view of
this conclusion, we need not address the
State's other arguments.
The State took the position that the court was following section
49-6-3(a)
because the language of the 10/17/83 order was similar to the
language in
that section. We agree that the reference in the order to
the "eminent
[sic] danger to the physical . . . well-being of the . . .
child" as well as
to the lack of "reasonable, available alternatives" is
evidence that the
court was following section 49-6-3(a). In addition,
while the order
does not set a date for a hearing on the case as
required by section
49-6-3(a), it does indicate that custody was given
to the State agency
"pending hearings in this matter," and it appoints
an attorney to represent
the child in the matter in accordance with
section 49-6-3(a). We
therefore conclude that the order was issued
pursuant to section 49-6-3(a),
which, as previously discussed, requires
a reasonable efforts
determination. Thus, the requirement for a
reasonable efforts
determination was satisfied here.
Sample Case #103
This case relates to a $1,316.43 payment for care received in 2/85 by
a
child placed in the State's custody pursuant to a court order
dated
1/26/84. The order stated that the court "does find probable
cause to
believe that . . . [the child] is a delinquent and incorrigible
child,"
as alleged in a petition filed by the child's father. The court
further
found that the child had been residing with her aunt and uncle
for
several weeks and "that it would be in her best interest to remain
there
until further action by this Court." The court also stated "that
. . .
[the child] is in need of supportive services which can only be
provided
by the West Virginia Department of Human Services" and that "the
Court
does hereby place emergency custody of respondent with the West
Virginia
Department of Human Services and physical custody with her Aunt
and
Uncle . . . until further action by this Court." State Ex. III-103,
1st
and 2nd pages. The record shows elsewhere that the child had run
away
from home. State Ex. III-103, last page. ACYF found that the
child was
ineligible for title IV-E payments because the 1/26/84 order did
not
contain a reasonable efforts determination.
The State argued that 1) the language of the 1/26/84 order indicated
that
the court made a reasonable efforts determination; 2) the 1/26/84
order was
based on unspecified provisions of the Child Welfare Law
requiring findings
which satisfied the reasonable efforts requirement;
and 3) a NPT order dated
6/23/88 stated that reasonable efforts to
prevent the child's removal from
the home were not possible under the
circumstances, and thus corrected the
omission of a reasonable efforts
determination from the 1/26/84 order.
We reject all three arguments.
We see nothing in the language of the 1/26/84 order which indicates
that
the court made a reasonable efforts determination. The State took
the
position that the "best interest" language in the order satisfied
the
reasonable efforts requirement under the ACYF's own guidance.
However,
as previously discussed, ACYF's review guide does not permit a
"best
interests" finding to satisfy the reasonable efforts requirement in
the
absence of any evidence that the court determined that
reasonable
efforts were not possible (as stated in the NPT order here) due to
an
emergency situation. The State also argued that the court's
finding
that the child was in need of supportive services which could only
be
provided by the State agency indicated that the lack of efforts
to
prevent the child's removal was reasonable. However, there is
no
apparent reason why such supportive services could not have
been
provided without removing the child from her parents' custody.
We find no basis for concluding that the reasonable efforts
requirement
was satisfied by virtue of the court's reliance on State law,
moreover.
The 1/26/84 order refers to section 49-1-4, which defines the
term
"delinquent child." It also uses the term "probable cause,"
which
appears in section 49-5-9(a)(3). This section provides that if
probable
cause is found to believe that the child is delinquent, the case
shall
proceed to adjudication. Section 49-5-9(a)(4) authorizes the
court to
"place the child in the temporary custody of the State" pending
an
adjudicatory hearing. However, it is not entirely clear that the
court
was following section 49-5-9(a) since the 1/26/84 order refers
to
"emergency" and not "temporary" custody. Moreover, even if the
court
intended to follow this section, it contains no language which could
be
viewed as requiring a reasonable efforts determination since there is
no
reference to the existence of an emergency situation which justified
the
lack of reasonable efforts (which the NPT order stated were not
possible
here).
We further find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
only
contemporaneous documentation in the record is the petition for
the
1/26/84 order. While that order appears to accept the allegations
in
the petition, there is nothing in the petition which supports
the
finding in the NPT order that the lack of preventive efforts
was
reasonable since the petition does not refer to services or
characterize
the child's home situation as an emergency one which would
excuse the
lack of services. See State Ex. III-103, 6th page.
Indeed, since the
child's father had petitioned to have legal custody placed
with the
State, it is unlikely that the court considered prevention of
removal as
an option.
Sample Cases #106 and #109
Sample case #106 relates to a $1,460 payment made for care received
in
6/85 by a child placed in the State's custody pursuant to court
order
dated 5/2/84. Sample case #109 relates to another $1,460 payment
for
care received in 8/85 by the same child. The order stated that
"the
Court finds that there is no less restrictive alternative other
than
commitment which would accomplish the requisite rehabilitation of
the
respondent child herein," who is shown elsewhere in the record to
have
been charged with petit larceny. State Ex. III-106, 1st page,
13th
page. The order gave the child a suspended sentence, placed him
on
probation for a period of six months, and ordered "that custody of
the
respondent be given to the Department of Human Services for placement
in
a group home. . . ." State Ex. III-106, 2nd and 3rd pages. The
record
shows that the child, a teenager, lived in his grandmother's house
with
his mother and two siblings, that the mother had emotional
problems
(later diagnosed as paranoid schizophrenia) and that the grandmother
was
in poor health. State Ex. III-106, 14th, 15th and 17th
pages. ACYF
found that the child was ineligible for title IV-E
payments because the
5/2/84 order did not contain a reasonable efforts
determination.
The State argued that 1) the language of the 5/2/84 order indicated
that
the court made a reasonable efforts determination; 2) the court
order
was based on unspecified provisions of the Child Welfare Law
requiring
findings which satisfied the reasonable efforts requirement; and 3)
the
NPT order issued 9/15/88 stated that reasonable efforts were made
to
prevent the child's removal from home, and thus corrected the
omission
of a reasonable efforts determination from the 5/2/84 order.
We reject
all three arguments.
The State took the position that the use of the "less
restrictive
alternative" language in the 5/2/84 order meant that the
court
"implicitly found that keeping the child in his home, which
would
obviously be a less restrictive alternative, 'was not appropriate or
in
the best interests of the child,'" within the meaning of ACYF's
review
guidelines. State's brief dated 1/2/91, p. 34. However, it
appears
from the context in which the "less restrictive alternative" language
is
used that it does not have the significance attributed to it by
the
State. While the court found that there was "no less
restrictive
alternative other than commitment" to the State Department
of
Corrections, the sentence of commitment was suspended, and the child
was
given probation instead and placed in the custody of the State
agency.
Thus, the court's determination that commitment was the
least
restrictive alternative had no bearing on the child's removal from
home.
Furthermore, we are not persuaded that the 5/2/84 order relied on
any
provisions of the Child Welfare Law which satisfied the
reasonable
efforts requirements. The 5/2/84 order does not cite any
statutory
authority. While the 5/2/84 order refers to the absence of a
"less
restrictive alternative," this was not a determination pursuant
to
section 49-5-13 that placement in the State's custody was the
least
restrictive alternative, as just indicated.
Finally, we find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
only
contemporaneous documentation in the record is the report of
the
probation officer referred to in the order. State Ex. IV-106, 1st
page.
This report does not indicate that any services were provided to
prevent
the child's removal from the home, as stated in the NPT order.
Sample Case #112
This case relates to a $207 payment for care received in 12/84 by a
child
who the State said was placed in the State's temporary custody
pursuant to a
court order dated 4/18/74. The order found that the child
and his
sibling were "neglected and abused children within the meaning
of the Child
Welfare Law of the State of West Virginia," and ordered
that temporary
custody be awarded to the State. The record shows that
there had been
reports that the child had been beaten by both his father
and mother.
State Ex. IV-112, 7th page. ACYF found that the child was
ineligible
for title IV-E payments on the ground that the court order
did not contain a
contrary to the welfare determination.
The State argued that 1) the 4/18/74 order was based on
unspecified
provisions of the Child Welfare Law which required findings
which
satisfied the requirement for a contrary to the welfare
determination;
and 2) a NPT order issued on 7/20/88 stated that continuation
in the
home was contrary to the child's welfare, and thus corrected
the
omission of a contrary to the welfare determination from the
4/18/74
order. We reject both of these arguments.
The 4/18/74 order specifically referred to the abuse and
neglect
provisions of the Child Welfare Law. The only requirement of
which we
are aware for a contrary to the welfare determination in the
Child
Welfare Law in effect at that time is found in section 49-6-4.
That
section provided that "[i]f the court finds that the interests
and
welfare of the child may best be served by the state department, it
may
commit the child to the custody and guardianship of the
state
department." State Ex. DD. It is nevertheless unclear that
the court
was acting pursuant to this section. Section 49-6-4 is
captioned
"Commitment of neglected child to state department." The
4/18/74 order
gives the State agency temporary custody of the child rather
than
committing the child without qualification to the State agency
as
authorized by this section. Section 49-6-3 permits a court to
order
temporary custody pending a hearing but does not specifically require
a
contrary to the welfare finding. State Ex. DD. Accordingly,
there is
no basis for finding that the court acted pursuant to State
law
requiring a contrary to the welfare determination.
Moreover, we find the NPT order insufficient to show that the court made
a
contrary to the welfare determination at the time of the removal since
there
is no contemporaneous documentation in the record which might show
that such
a determination was made.
Sample Case #180
This case relates to a payment of $144 for care received in 12/84 by
a
child placed in the State's custody pursuant to an order dated
8/17/83.
The order granted temporary custody of the child and his sibling to
the
State based on the joint motion of the State, the children (by
their
attorney) and the mother. A prior order by the same judge,
issued
5/16/83, revoked a one-year improvement period previously granted to
the
child's mother to improve her care for the child, stating in
pertinent
part that "there is clear and convincing evidence sufficient to
prove
that . . . the Adult Respondent did not make a good faith effort
to
fulfill the duties of parenthood, that she did not provide
the
necessities as required by law for the Infant Respondents, and that
she
repeatedly avoided and evaded her responsibilities for the
Infant
Respondents and that she has not assumed her parental role as a
mother
of the said Infant Respondents. . . ." State Ex. III-180, 12th
and 13th
pages. ACYF found that the child was ineligible for title IV-E
payments
on the ground that the 8/17/83 order did not contain a contrary to
the
welfare determination.
The State argued that 1) the language in the 5/16/83 order indicated
that
the court made a contrary to the welfare determination; 2) the
8/17/83 order
relied on unspecified provisions of the Child Welfare Law
which required
findings which satisfied the contrary to the welfare
requirement; and 3) the
NPT order issued 9/21/88 stated that
continuation in the home is contrary to
the welfare of the child, and
thus corrected the omission of a contrary to
the welfare determination
from the 8/17/83 order. We conclude that the
5/16/83 order contained a
contrary to the welfare determination, and that the
contrary to the
welfare requirement was satisfied because the subsequent
order removing
the child from the home was based on the 5/16/84 order.
In light of
this conclusion, we need not address the State's other
arguments.
ACYF did not argue that the 5/16/83 order did not contain a contrary
to
the welfare determination. (In any event, such a determination
can
reasonably be inferred from the reasons for revoking the
mother's
improvement period which are listed in that order.) However,
ACYF
contended that the contrary to the welfare requirement was not
satisfied
unless the determination was in the order actually removing the
child
from the home. We disagree. Section 472(a)(1) of the Act
requires that
the child's removal from home be "the result of a judicial
determination
to the effect that continuation therein would be contrary to
the welfare
of such child. . . ." (Emphasis added.) Since it was
necessary to
revoke the mother's improvement period before the child could be
removed
from the home, it is fair to conclude that removal resulted
from the
5/16/83 order as well as from the 8/17/83 order. .Sample Case
#194
This case relates to a $1.00 payment made for care received on 12/1/84
by
a child placed in the State's custody pursuant to a court order
dated
9/12/84. This order stated that "the Court finds that the
respondent is
so unmanageable, ungovernable and antisocial that no other
reasonable
alternative exists for treatment or restraint other than
placements
[sic] in a secure facility." The court therefore ordered the
child
committed to a "Status Offense Facility" for a period not to exceed
one
year and also placed her in the temporary custody of the State
agency
for such time as she remained at the facility. State Ex.
III-194, 1st
and 2nd pages. The order was apparently issued in response
to a
petition dated 8/9/84 which requested modification of a
previous
dispositional order to a more restrictive alternative on the ground
that
the child had failed to abide by her curfew, had repeatedly left
home
without authorization and remained away overnight on several
occasions,
and had been generally beyond the control of her guardian.
State Ex.
III-194, 7th page. ACYF found that the child was ineligible
for title
IV-E payments on the ground that the 9/12/84 order did not contain
a
reasonable efforts determination.
The State argued that 1) the language of the 9/12/84 order indicated
that
the court made a reasonable efforts determination; 2) the 9/12/84
order was
based on section 49-5-13(b)(6) of the Child Welfare Law, which
required
findings which satisfied the reasonable efforts requirement;
and 3) a NPT
order dated 8/10/88 stated that reasonable efforts to
prevent the child's
removal from the home were not possible under the
circumstances, and thus
corrected the omission of a reasonable efforts
determination from the 9/12/84
order. We reject all three arguments.
21/
We see nothing in the 9/12/84 order which constitutes a reasonable
efforts
determination. While the statement that "no other alternative
exists
for treatment or restraint" is arguably a finding that preventive
services
could not be provided, such a finding, as noted previously,
satisfies the
reasonable efforts requirement only if there is an
emergency situation which
necessitates the child's immediate removal
from the home. There is no
evidence on the face of the order that the
court believed that an emergency
situation existed here nor did the
petition allege that one existed.
The record also fails to support the State's contention that
the
reasonable efforts requirement was satisfied by the court's reliance
on
State law. The 9/12/84 order does not cite any provisions of the
Child
Welfare Law. Even if the order was authorized by section
49-13-5(b)(6),
as the State contended, we see nothing in that section which
requires a
reasonable efforts determination. Instead, it merely
requires a finding
"that the child is so totally unmanageable, ungovernable
and antisocial
that the child is amenable to no treatment or restraint short
of
incarceration. . . ." Moreover, as previously discussed,
the
requirement in section 49-13-5(b) that the court "give precedence to
the
least restrictive of the following alternatives consistent with the
best
interests and welfare of the public and the child" is not clearly
a
requirement for a reasonable efforts determination. We note in
any
event that it is possible that the court was not applying
section
49-13-5(b)(6), but rather section 49-5-14, which appears to permit
a
court to modify an order to provide for a more restrictive
alternative
simply because the child has violated a previous court order, as
this
child had.
Finally, we find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
only
contemporaneous documentation in the record is the 8/9/84
petition,
which is not referred to in the original order. Thus, even if
the court
would have made a reasonable efforts determination based on the
facts
alleged in the petition, we cannot conclude that such a
determination
was made.
Sample Case #215
This case relates to a $90 payment made for care received in 7/85 by
a
child placed in the State's temporary custody pursuant to a court
order
dated 3/26/85. The court order stated that a domestic violence
petition
had been filed by the child's mother, that both the child's mother
and
father were present at a hearing held "for the purpose of rendering
a
temporary order under the provision of West Virginia Code
Section
48-2A-5," and that custody of the child and her sibling was awarded
to
the State agency until a full hearing on the petition, scheduled for
two
days later. State Ex. III-215, 1st page. An order dated
3/28/85 stated
that a hearing was held under "Code Section 48-2A-5(2)" and
that by
"consent of the parties" and "with no adjudication on the merits of
the
allegations in the petition," the custody of the children was to
remain
with the State agency, which was to place the children with such
person
or persons as it deemed appropriate, with limited visitation
rights
granted to the father. State Ex. IV-215, 9th page. The
record shows
that the mother's petition alleged that the father sexually
abused the
child. State Ex. IV-215, 2nd page. The record
also indicates that, on
the same day the mother's petition was filed, the
father filed a "mental
hygiene petition" in order to have the mother
committed, that the mother
had been under psychiatric care for five years at
the time she filed the
petition, and that some time in March 1985, she asked
the State agency
to place the children in foster care because she felt she
was having
"another emotional breakdown." State Ex. IV-215, 1st, 13th
and 14th
pages. ACYF found that the child was ineligible for title IV-E
payments
on the ground that a reasonable efforts determination had not been
made.
The State argued that 1) the 3/26/85 court order was based on
section
48-2A-5 of the Child Welfare Law, which required findings
which
satisfied the reasonable efforts requirement; and 2) the NPT
order
issued 8/8/88 stated that reasonable efforts to prevent removal were
not
possible under the circumstances, and thus corrected the omission of
a
reasonable efforts determination from the 3/26/85 order. We reject
both
of these arguments.
Although the 3/26/85 order specifically referred to section 48-2A-5 of
the
Child Welfare Law, we find that this did not satisfy the reasonable
efforts
requirement. This section states in pertinent part that --
(1) Upon the filing of a verified petition under this
article,
the court may enter such temporary orders as it may
deem
necessary to protect the complainant or minor children
from
abuse, and upon good cause shown, may do so ex parte. . .
.
Clear and convincing evidence of immediate and present danger
of
abuse to the complainant or minor children shall constitute
good
cause. . . .
There is no express requirement in this section that the court find
that
the provision of preventive services was not possible, as the NPT
order
stated was the case here. Moreover, as previously discussed, the
lack
of preventive services is reasonable only if the court finds that
an
emergency situation exists. A comparable finding, i.e., that there
is
"clear and convincing evidence of immediate and present danger of
abuse
to the . . . minor children," is required by section 48-2A-5(1) only
if
the court wishes to issue an order ex parte. In this case, the
order
granting temporary custody to the State agency was not issued ex
parte
since both parents were present at the 3/26/85 hearing.
Accordingly, as
applied here, section 48-2A-5(1) did not require a reasonable
efforts
finding. While there is also a reference in the 3/28/85 order
to
section 48-2A-5(2), that section too contains no requirement for
a
reasonable efforts finding but requires only that the allegation
of
abuse be proved by a preponderance of the evidence in order for
the
court to issue a protective order or approve a consent agreement.
In addition, we find the NPT order insufficient to show that the
court
made a reasonable efforts determination at the time of the removal
since
there is no contemporaneous documentation in the record which might
show
that a reasonable efforts determination was made.
Sample Case #232
Sample case #232 relates to a $2,859 payment for care received in 3/85
by
a child placed in the State's custody pursuant to a court order
dated
5/11/83. The order stated that the case came before the court
"for
further disposition," and ordered that custody of the child be given
to
the State agency and that he be placed at the "Cabell County
Youth
Center" pending other placement "by Braley and Thompson." State
Ex.
III-232, 1st page. The record indicates that the child had been
on
probation, having been given a suspended sentence for shoplifting
and
subsequently charged with breaking and entering. State Ex. III-232,
4th
page. ACYF found that the child was ineligible for title IV-E
payments
because the 5/11/83 order lacked a contrary to the
welfare
determination.
The State argued that 1) the 5/11/83 order was based on
delinquency
provisions of the Child Welfare Law which required findings
which
satisfied the contrary to the welfare requirement; and 2) the NPT
order
issued 8/10/88 stated that continuation in the home was contrary to
the
welfare of the child, and thus corrected the omission of a contrary
to
the welfare finding from the 5/11/83 order. We reject both
arguments.
There is no reference in the 5/11/83 order to any provision of the
Child
Welfare Law. The State argued, however, that the court
"expressly
relied on the provisions in the West Virginia Child Welfare Law
relating
to the removal of delinquent children." State brief dated
1/2/91, p.
44. It is possible that the court might have been applying
section
49-5-13, which provides several alternative dispositions for a child
who
has been adjudged delinquent, stating that the court "shall
give
precedence to the least restrictive of the . . . alternatives
consistent
with the best interests and welfare of the public and the child. .
. ."
However, this section does not require a finding which satisfies
the
contrary to the welfare requirement since the section requires that
the
court consider not only the child's interests but also the interests
of
the public, while the contrary to the welfare requirement
specifically
addresses only the child's welfare. It is also possible
that the court
might have been applying section 49-5-14, which appears to
permit a
court to modify an order to provide for a more restrictive
alternative
simply because the child has violated probation, as this child
had,
without requiring any finding which would satisfy the contrary to
the
welfare requirement.
We also find the NPT order insufficient to show that the court made
a
contrary to the welfare determination at the time of the removal
since
there is no contemporaneous documentation in the record which might
show
that a contrary to the welfare determination was made.
Sample Case #236
This case relates to a $127 payment for care received in 9/84 by a
child
placed in the State's temporary custody pursuant to a court order
dated
6/25/84. The order stated that "the infant child has been
abandoned by
his mother . . . on June 20, 1984" and awarded temporary custody
of the
child to the State agency, setting the matter for hearing on
6/28/84.
State Ex. III-236, 1st page. The petition on which the 6/25/84
order
was based stated that the child's mother left the four-year-old
child
with two individuals without providing money, proper food or
clothing,
stating that she would return for him in a few hours. The
petition
further stated that, when the mother had not returned in two days,
the
individuals with whom the child was left brought the child to the
State
agency. According to the petition, moreover, the mother's
whereabouts
were unknown at the time the petition was filed. (The
petition is
undated, but stamped received on 6/25/84.) State Ex.
IV-236, 4th page.
ACYF found that the child was ineligible for title IV-E
payments on the
ground that there was no reasonable efforts determination in
the 6/25/84
order.
The State argued that 1) the 6/25/84 order was based on sections
49-6-3
and 49-6-5(a)(5) of the Child Welfare Law, which required findings
which
satisfied the reasonable efforts requirement; and 2) the NPT
order
issued 9/9/88 stated that reasonable efforts to prevent the
child's
removal from the home were made, and thus corrected the omission of
a
reasonable efforts determination from the 6/25/84 order. We reject
both
arguments.
Although the State identified specific provisions of the Child Welfare
Law
on which it contended the 6/25/84 order relied, the order does not
refer to
any statutory authority or contain any language which resembles
that of the
provisions identified by the State. Moreover, the sections
which the
State cited authorize a number of different proceedings
concerning neglected
children. Accordingly, we conclude that there is
insufficient evidence
to show that the court order was based on State
law requiring a reasonable
efforts finding.
We also find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
only
contemporaneous documentation in the record is the first page of
the
petition which alleged that the child had been abandoned.
However,
since the order does not refer to the petition, there is no basis
for
concluding that the court adopted the facts alleged in the
petition.
Thus, even if the court would have determined based on those facts
that
reasonable efforts had been made (as the NPT order stated was the
case
here), we cannot conclude that such a determination was made here.
22/
Sample Cases #238, #240 and #243
Sample case #238 relates to a $1,460 payment for care received in 10/84
by
a child who the State said was placed in the State's custody pursuant
to a
court order dated 10/18/83. Sample cases #240 and #243 relate
to
payments of $1,460 and $48 for care received by the same child in
12/84
and 1/85, respectively. The 10/18/83 order was captioned
"Delinquent
Child Proceeding" and ordered that "upon representation by the
State
through its attorney, that the health, safety, and welfare of the
child
demand such custody," the child "be taken into custody by the Sheriff
of
Marshall County, and thereupon committed to the temporary custody of
the
West Virginia Department of Human Services for emergency placement,
in
the event the child cannot be released to the custody of said
child's
parents or custodian, or the circumstances warrant otherwise. . .
."
ACYF found that the child was ineligible for title IV-E payments on
the
ground that the 10/18/83 order did not include a reasonable
efforts
determination.
The State argued that 1) the language in the 10/18/83 order to the
effect
that the child's health, safety and welfare demanded custody
constituted a
"best interests" determination which satisfied the
reasonable efforts
requirement; 2) the 10/18/83 order relied on section
49-5-8(a) of the Child
Welfare Law, which required findings which
satisfied the reasonable efforts
requirement; and 3) the NPT order
issued 9/8/88 stated that reasonable
efforts to prevent the child's
removal from the home were not possible under
the circumstances, and
thus corrected the omission of a reasonable efforts
determination from
the 10/18/83 order.
We reject all three arguments on the ground that the 10/18/83 order
does
not conclusively determine that the child should be placed in
the
State's custody. Instead, the order gives the State agency the
option
of either retaining custody and finding an emergency placement for
the
child or giving the child back to his parents. Since the court
left
open the possibility of return to the parents, the court would not
have
determined that preventive efforts were not possible under
the
circumstances, as the NPT order stated was the case here. Thus, we
need
not consider what findings were made pursuant to State law or
what
contemporaneous documentation supported the NPT order.
Sample Case #242
This case relates to a $1,408.90 payment for care received in 1/85 by
a
child placed in the State's custody pursuant to a court order
dated
8/29/84. The order stated that it was "in the best interests of
the . .
. [child] and the people of the state of West Virginia to grant
an
improvement period . . . ," and ordered an improvement period of
12
months on the condition that the child voluntarily participate in
a
residential program called "Teen Challenge" and be placed in
the
temporary custody of the State agency while at "Teen Challenge."
The
transcript of the court proceeding which resulted in the issuance of
the
order shows that the child had requested that he be permitted
to
participate in "Teen Challenge," and that his mother and a sister
who
had legal custody agreed to the request. State Ex. IV-242.
The record
also indicates that a juvenile petition had been filed alleging
that the
child had forged and uttered several different checks. State
Ex.
IV-242, 2nd page. ACYF found that the child was ineligible for
title
IV-E payments because there was no reasonable efforts determination
in
the 8/29/84 order.
The State argued that 1) the 8/29/84 order was based on the
delinquency
provisions of the Child Welfare Law, which required findings
that
satisfied the reasonable efforts requirement; and 2) the NPT
order
issued 6/22/88 stated that reasonable efforts to prevent the
child's
removal from the home were not possible under the circumstances,
and
thus corrected the omission of a reasonable efforts determination
from
the 8/29/84 order. We reject both of these arguments.
While the State argued that the 8/29/84 order relied on the
delinquency
provisions of the Child Welfare Law, the order does not contain
any
reference to that statute. The order does refer to the
petition
alleging the child to be a delinquent child, which states that it
was
filed pursuant to section 49-6-1; however, this section pertains
to
petitions regarding neglected or abused children. It
nevertheless
appears that, given the facts of the case, the 8/29/84 order may
have
been authorized by section 49-5-9, which provides that following
the
filing of a juvenile petition, the court shall hold a
preliminary
hearing, which may be waived by the child (as was done
here). The
section further provides that --
[t]he child may move to be allowed an improvement period for
a
period not to exceed one year. If the court is satisfied
that
the best interest of the child is likely to be served by
an
improvement period, the court may delay the adjudicatory
hearing
and allow a noncustodial improvement period upon
terms
calculated to serve the rehabilitative needs of the child.
At
the conclusion of the improvement period, the court
shall
dismiss the proceeding if the terms have been
fulfilled;
otherwise the court shall proceed to the adjudicatory
stage.
Even assuming the court had this section in mind when it issued the
order,
however, we see nothing in the section which requires a
reasonable efforts
finding. As previously indicated, a reference to the
child's "best
interest" does not satisfy the reasonable efforts
requirement since it does
not indicate that the court determined that
preventive services were provided
or (as stated in the NPT order) were
not possible due to an emergency
situation.
Moreover, we find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal. The
State
provided a copy of both the petition on which the 8/29/84 order
was based and
the transcript of the court proceeding which resulted in
the issuance of that
order. There is no indication in either document
that an emergency
situation existed which justified the lack of
preventive services.
Furthermore, there is no other contemporaneous
documentation which supports a
conclusion that a reasonable efforts
determination was omitted from the
8/29/84 order by mistake.
Sample Case #247
This case relates to a $600 payment made for care received 5/85 by a
child
placed in the State's custody pursuant to a court order dated
5/26/82.
The order was captioned "Delinquent Child Proceeding" and
indicated that a
detention hearing had been held and that the court was
ordering the child to
be placed in the temporary custody of the State
agency for placement in
"Samaritan House" pending a preliminary hearing.
State Ex III-247, 1st
page. The petition on which the order was based
was filed by the
child's mother, alleging that the child "was
incorrigible in that he without
just cause, habitually and continually
refuses to respond to the supervision
legally required of said
respondent child's parents, as outlined in Chapter
49, Article 1,
Section 4, paragraph (3) of the Code of West Virginia. . .
." State Ex.
IV-247, 2nd page. The record shows that several
months before the order
was issued, the child had been given 30 days
probation for breaking and
entering. State Ex. III-247, 9th page.
ACYF found that the child was
ineligible for title IV-E payments on the
ground that there was no
contrary to the welfare determination in the 5/26/82
order.
The State argued that 1) the 5/26/82 order relied on the
delinquency
provisions of the Child Welfare Law which required findings
which
satisfied the contrary to the welfare requirement; and 2) the NPT
order
issued 9/8/88 stated that continuation in the home was contrary to
the
child's welfare, and thus corrected the omission of a contrary to
the
welfare finding from the 5/26/82 order. We reject both
arguments.
Although the 5/26/82 order does not cite any provision of the
Child
Welfare Law, it is captioned "Delinquent Child Proceeding" and refers
to
a petition which alleges that the child is a delinquent child within
the
meaning of section 49-1-4 of the Child Welfare Law. Given the facts
in
the case, the likely authority for the order was section 49-5-8 of
the
Child Welfare Law, which provides for a detention hearing prior to
the
preliminary hearing where a juvenile petition has been filed.
Section
49-5-8(d) states in pertinent part that --
[t]he sole mandatory issue at the detention hearing shall
be
whether the child shall be detained pending further
court
proceedings. The court shall, if advisable, and if the
health,
safety and welfare of the child will not be endangered
thereby,
release the child on recognizance to his parents, custodians
or
an appropriate agency. . . .
Under this provision, the court can decide not to release the child to
his
parents if the court finds that this is not "advisable" without also
finding
that this would endanger the child's welfare. Thus, even if the
court
intended to rely on this provision, this does not ensure that the
court made
a contrary to the welfare determination.
Moreover, we find the NPT order insufficient to show that the court made
a
contrary to the welfare determination at the time of the removal.
The
only contemporaneous documentation in the record is the petition
on
which the 5/26/82 order was based. While that order refers to
the
petition, it does not expressly adopt as findings the allegations in
the
petition.
Sample Case #254
This case relates to a $608 payment made for care received by a
child
placed in the State's temporary custody pursuant to court order
dated
1/4/84. 23/ The order stated that the court was notified on
12/29/84 by
an individual who appears to have been a child protective
services
worker that the child was in need of emergency placement, and that
"[i]t
was therefore ORDERED" that the child "be placed in the temporary . .
.
custody . . . of the West Virginia Department of Human Services
agency
with placement to be determined as soon as possible." State
Ex.
III-254, 1st page. It appears that the 1/4/84 order confirmed an
oral
order by the court issued 12/29/83. See State Ex. IV-254, 1st
page.
The record also shows that the child ran away from home on
11/23/83
after fighting with her mother and was staying with her older
sister
when she was picked up by the police based on a runaway
petition. State
Ex. IV-254, 1st and 3rd pages. ACYF found that
the child was ineligible
for title IV-E payments on the ground that the
1/4/84 order did not
contain either a contrary to the welfare determination
or a reasonable
efforts determination.
The State argued that 1) the language in the 1/4/84 order to the
effect
that the child "was in need of an emergency placement" showed that
the
court made contrary to the welfare and reasonable
efforts
determinations; 2) the 1/4/84 order relied on the delinquency
provisions
of the Child Welfare Law which required findings which satisfied
the
contrary to the welfare and reasonable efforts requirements; and 3)
the
NPT order issued 9/9/88 (and entered 9/16/88) stated that
continuation
in the home was contrary to the child's welfare and that
reasonable
efforts to prevent the child's removal from the home were made,
and thus
corrected the omission of these determinations from the 1/4/84
order.
We reject the State's arguments that a reasonable efforts
determination
was made. Accordingly, we need not consider whether the
contrary to the
welfare requirement was satisfied.
We see nothing in the language of the 1/4/84 order which indicates
that
the court made a reasonable efforts determination. It is not clear
that
the court made a finding that the child was in need of an
emergency
placement rather than simply noting that an allegation to that
effect
had been made. Even if the court made such a finding, moreover,
this
does not eliminate the need for some indication that the
court
determined that this justified the lack of preventive services.
In addition, there is no basis for concluding that the reasonable
efforts
requirement was satisfied by the court's reliance on the
delinquency
provisions of the Child Welfare Law. The 1/4/84 order does
not refer to
any provisions of the Child Welfare Law and is not
identified as pertaining
to a delinquency proceeding. Nevertheless,
given the facts of the case,
it appears that the order could have been
issued pursuant to section
49-5-8. That section provides in pertinent
part that, upon the filing
of a juvenile petition, a child may be taken
into custody by a
law-enforcement official if "emergency conditions
exist . . . ." The
section further provides for a detention hearing,
and states that "[t]he
court shall, if advisable, and if the health,
safety and welfare of the child
will not be endangered thereby, release
the child on recognizance to his
parents, custodians or an appropriate
agency . . ." until a preliminary
hearing is held. However, even if the
court was cognizant of this
provision when it issued the 1/4/84 order,
there is no requirement in the
section that the court consider whether
reasonable efforts were made to
prevent the child's removal from the
home.
Finally, we find the NPT order insufficient to show that the court made
a
reasonable efforts determination at the time of the removal since
there is no
contemporaneous documentation in the record which might show
that such a
determination was made.
Conclusion
Based on the foregoing, we conclude that the disallowance was
properly
based on extrapolation from those sample cases in the Stage II
sample
which were ineligible. We further conclude that ACYF incorrectly
found
sample cases #46, #91 and #180 ineligible and reverse the
disallowance
pertaining to those cases as well as to sample case #222, which
ACYF
admitted it incorrectly found ineligible. We uphold the
disallowance
pertaining to the remaining sample cases, subject to reduction
upon a
showing by the State that the amount of the payment in sample case
#82
was overstated (see note 16 above).
_____________________________ Cecilia Sparks Ford
_____________________________ Donald F. Garrett
_____________________________ Judith A. Ballard Presiding
Board
Member
1. Effective April 15, 1991, ACYF was one of several agencies
combined
into the Administration for Children and Families.
2. There are a number of cases in which the court order does not
appear
to include a contrary to the welfare determination, but ACYF cited
only
the lack of a reasonable efforts determination as a deficiency.
See
e.g., sample case #12. We assume for purposes of this decision that
the
contrary to the welfare requirement was met in such cases.
3. Both parties to this appeal appeared to read the
judicial
determination requirement as applying to the initial order removing
the
child from the home rather than to any subsequent order continuing
the
State's custody. While in some cases, the initial court orders
provided
by the State to establish that the requisite judicial
determinations
were made authorized the child's removal for a temporary
period which
may have ended before the date of care for which payment was
made, ACYF
never objected to them on this basis. We therefore assume
for purposes
of this decision that the judicial determination requirement
applies
only to the initial orders upon removal.
4. Nunc pro tunc literally means "now for then."
5. However, the review guide provides that "[i]f a stage one
review
indicates that a child or provider is ineligible, his/her
eligibility
for the entire year should be reviewed and disallowances taken
for
whatever portion of the year he/she is ineligible."
IM-85-25,
Attachment, p. 6.
6. The State clearly misread Oklahoma Dept. of Human Services, DAB
No.
1223 (1991), which it asserted held that "the agency may not rely
upon
the second stage of a Title IV-D audit if the state
successfully
challenges the results of the agency's Stage I
conclusion." State's
brief dated 3/1/91, p. 3. The statutory
procedures applicable to title
IV-D compliance audits (which do not identify
unallowable costs but
establish the basis for a percentage reduction in
funding) specifically
provide that, if a state passes either a program
results audit or the
follow-up review after a corrective action period, no
funding reduction
will be imposed. See section 403(h) of the Act.
Here, it was within
ACYF's discretion to discontinue an audit process for a
period if
satisfied that a state was meeting applicable requirements, but
arguably
not within ACYF's discretion to allow funding once unallowable
costs
were identified.
7. The provisions of the West Virginia Child Welfare Law are
at
sections 49-1-1 et seq. of the State code while the provisions of
the
Domestic Relations Law are at sections 48-2A-1 et seq. For
convenience,
we refer to all relevant provisions as part of the Child Welfare
Law.
8. The State also asserted that West Virginia case law requires a
court
to make the determinations specified in section 472(a)(1) of the
Act.
However, none of the orders in question here cited any court
cases.
Thus, we cannot assume that the court was aware of any State case law
to
this effect.
9. While the Board generally defers to a state's interpretation of
its
own law, the issue here is whether various provisions of the
Child
Welfare Law unambiguously require a particular result. Thus, we
are not
dealing with a matter of interpreting ambiguous provisions but
of
determining whether the State law is clear on its face. We
therefore
conclude that it would not aid the State's case to provide an
opinion of
its Attorney General regarding what is required by the provisions
in
question. (The State offered to provide such an opinion in response
to
ACYF's assertion, which we find unsupportable, that the lack of such
an
opinion should be held against the State. ACYF apparently had in
mind
the statement in ACYF-PIQ-86-02 that "it may be necessary to request
a
State Attorney General's opinion" to support a state's reliance on
state
law to satisfy the judicial determination requirements. State Ex.
W, p.
3.) While the State's Attorney General might state
authoritatively that
a provision of the Child Welfare Law permitted a court
to order a
child's removal from the home only upon the findings required by
section
472 of the Act, the issue here is whether this was clear on the face
of
the provision.
10. Another flaw in some of the motions for NPT orders is
the
allegation that reasonable efforts to prevent the child's removal
from
his home were not possible because the State agency did not learn of
the
case until the order removing the child was issued. (See, e.g.,
sample
case #25.) This would not appear to be a valid reason why
reasonable
efforts could not have been provided. The State undertook in
its title
IV-E plan to provide such efforts in each case. Moreover,
under some
provisions of the Child Welfare Law, e.g., section 49-5-13(b), the
court
itself could have ordered that preventive services be provided in
lieu
of ordering the removal of the child from his home. Finally,
under
section 472(a)(1) of the Act, the State agency's lack of prior
knowledge
of the case would not justify the lack of preventive services
unless an
emergency situation existed where removal was necessary to protect
the
child.
11. Even if the State were correct that State case law limited the
use
of NPT orders to the correction of mistakes in the original order,
we
are not willing to assume that the courts issuing the NPT orders
here
were aware of this law since the issuance of NPT orders is unusual,
the
motions for the orders were uncontested, and nothing in the
motions
specifically refers to case law on NPT orders.
12. Also, in the absence of contemporaneous documentation showing
that
evidence of the efforts made to prevent the child's removal from
the
home or of an emergency situation making such efforts impossible
was
presented to the court at the time of the original order, it
is
reasonable to infer that the court did not address the issue at
the
time. This inference is based on the principle that the court could
not
have found efforts to be reasonable if it was not informed at the
time
about what those efforts were. Similarly, unless there
is
contemporaneous documentation showing that evidence regarding
the
child's home situation was presented to the court at the time of
the
original order, it is reasonable to infer that the court could not
have
determined that continuation in the home was contrary to the
child's
welfare.
13. The amount of the payment and the date of care are not indicated
in
the record.
14. Moreover, the record includes a September 19, 1986 letter from
the
county assistant prosecuting attorney (who participated in the
original
proceeding) which refers to the 11/23/83 order and states that
"[a]t
this time there is no basis for amending that Court order as it
appears
to properly set forth the proceedings which occurred on that
date."
State Ex. IV-C. This undercuts the State's position that there
was a
mistake made in the original order which was corrected by the NPT
order.
15. In addition, the fact that the petition referred to in the
order
cited other provisions of the Child Welfare Law did not establish
that
the court relied on section 49-6-3(a).
16. The amount of the payment in sample case #82 is unclear.
The
attachment to the disallowance letter identified the amount of
the
payment as $197 while the State identified the amount of the payment
as
$127. See State Ex. A, p. 4 and State Ex. II-82, 13th page. If
the
State believes that ACYF overstated the amount of the payment,
it
should, within 30 days of its receipt of this decision,
furnish
documentation to ACYF which establishes the correct amount.
17. The NPT order states that it is effective 6/11/84 and thus
appears
to relate to the second order, issued on that date.
18. Under ACYF's policy, the relevant date would be the date of
care
covered by the payment, not the date payment was issued. In this
case,
however, the difference between the dates of care and the dates
the
claims were filed or the payments were made was not significant.
19. This is a case summary prepared by the State after the
disallowance
was issued rather than primary documentation; however, ACYF did
not give
any reason why we should conclude that the case summary is
incorrect.
20. We also note that if the facility referred to in the 10/14/84
order
was a detention facility and the child was still in this facility on
the
date of care in question, the child may have been ineligible for
title
IV-E payments on the ground that FFP is not available for the cost
of
care provided by a detention facility. 42 C.F.R. 436.1004(a)(1).
21. Another ground for questioning eligibility is that the payment
was
for care provided in a detention facility. See note 20, supra.
22. The petition stated that the State agency had posted a notice
on
the mother's last known residence to the effect that the child was
in
its custody. While the court could arguably have found that
this
constituted reasonable efforts, this finding cannot be inferred from
the
language of the 6/25/84 order.
23. The date of care is not shown in the