GAB Decision 546
Docket No. 83-196
June 27, 1984
Vermont Department of Social Rehabilitation Services;
Ballard, Judith; Teitz, Alexander Settle, Norval
The Vermont Department of Social and Rehabilitation Services (State)
appealed a determination by the Acting Commissioner, Administration for
Children, Youth and Families, Office of Human Development Services
(Agency) that the State was ineligibl for fiscal year 1981 funds under
section 427(a) of the Social Security Act (Act). That section provides
that a state may receive additional funds for child welfare services,
beyond the amount available to each state under section 420 of the Act,
/1/ if the state meets certain requirements for the protection of
children in foster care. In September 1981, the Agency approved the
State's request for additional funds based on a written certification by
the State that it met the requirements of section 427. /2/ However,
following a review conducted in June 1982 to validate the State's
self-certification, the Agency advised the State that it was ineligible
for fiscal year 1981 funds since it did not have appropriate procedures
for dispositional hearings required by the Act. /3/
(2) For the reasons discussed below, we sustain the Agency's
determination that the State was ineligible for the section 427 funds
awarded for fiscal year 1981.
Applicable Law
As one of the conditions for the receipt of additional child welfare
funds, section 427(a)(2)(B) requires that the State have implemented and
be operating to the satisfaction of the Secretary--
A case review system (as defined in section 475(5)) for each child
receiving foster care under the supervision of the State. . . .
Section 475(5) provides that--
(5) The term "case review system" means a procedure for assuring
that--
(A) each child has a case plan designed to achieve placement in the
least restrictive (most family like) setting available and in close
proximity to the parents' home, consistent with the best interest and
special needs of the child,
(B) the status of each child is reviewed periodically but no less
frequently than once every six months by either a court or by
administrative review (as defined in paragraph (6)) in order to
determine the continuing necessity for and appropriateness of the
placement, the extent of compliance with the case plan, and the extent
of progress which has been made toward alleviating or mitigating the
causes necessitating placement in foster care, and to project a likely
date by which the child may be returned to the home or placed for
adoption or legal guardianship, and
(C) with respect to each such child, procedural safeguards will be
applied, among other things, to assure each child in foster care under
the supervision of the State of a dispositional hearing to be held, in a
family or juvenile court or another court (including a tribal court) of
competent jurisdiction, or by an (3) administrative body appointed or
approved by the court, no later than eighteen months after the original
placement (and periodically thereafter during the continuation of foster
care), which hearing shall determine the future status of the child
(including, but not limited to, whether the child should be returned to
the parent, should be continued in foster care for a specified period,
should be placed for adoption, or should (because of the child's special
needs or circumstances) be continued in foster care on a permanent or
long-term basis); and procedural safeguards shall also be applied with
respect to parental rights pertaining to the removal of the child from
the home of his parents, to a change in the child's placement, and to
any determination affecting visitation privileges of parents.
Agency's Findings
The Agency evaluated states' compliance with section 427 on two
levels. First, the Agency determined whether a state had established
policies or procedures for implementing the requirements of the statute.
Second, the Agency reviewed a sample of case records to determine
whether these policies or procedures were operational. If a state
failed to establish a requirement as a matter of policy, or, in fiscal
year 1981, if the state did not comply with the applicable requirements
in at least 66% of the cases sampled, the Agency required the return of
the section 427 funds.
For fiscal year 1981, the State was found in compliance in 70% of the
cases sampled. (State's brief dated January 9, 1984, p. 4) However, the
Agency found that the State failed to establish appropriate policies and
procedures in three respects. (Full compliance in a particular case was
possible despite the State's failure to have policies providing for all
required safeguards since a child may not have been in foster care long
enough to require every safeguard. /4/ First, the Agency found that the
State did not (4) require dispositional hearings for children with
respect to whom parental rights had been terminated and who were placed
in the custody of the State, even though those children remained in
foster care. (These children will be referred to as TPR children.)
Second, the Agency found that the State did not require that
dispositional hearings be held within 18 months of the original
placement of each child in foster care under the supervision of the
State. Third, the Agency found that the State did not require
dispositional hearings in the even that no party requested a hearing.
(State's appeal file, Exhibit 10)
Dispositional Hearings for TPR Children
Section 475(5) requires an initial dispositional hearing no later
than 18 months after the child's original placement in foster care and
hearings "periodically thereafter" during the continuation of foster
care. The State alleged that it provided both initial dispositional
hearings and subsequent periodic hearings for TPR children. (State's
brief dated January 9, 1984, pp. 15-16) We find that the State clearly
failed to meet the requirement for periodic dispositional hearings after
the initial dispositional hearing in the case of TPR children.
Accordingly, we do not reach the discrete issue of whether the State met
the requirement for initial dispositional hearings for TPR children.
(The State did not explain, and we see no basis for, its argument that
the alleged frequency of dispositional hearings prior to the termination
of parental rights should be considered in determining whether there
were adequate provisions for subsequent periodic dispositional hearings.
(See State's reply brief dated March 27, 1984, pp. 6-7))
The State contended that it fulfilled the requirement for periodic
dispositional hearings for TPR children in several ways. First, the
State alleged that provisions in State law (15 V.S.A., Ch. 9, section
431 et seq.) for a hearing in the probate court to determine whether to
approve a specific proposed adoptive placement met this requirement of
the Act. Second, the State alleged that State law (33 V.S.A. 659)
permitting a juvenile court judge at his discretion to continue to hold
dispositional hearings (which pursuant to 33 V.S.A. 658 are mandatory
every 18 months /5/ where (5) parental rights are not terminated) after
the termination of parental rights also met this statutory requirement.
(State's brief dated January 9, 1984, p. 9)
We agree with the Agency, however, that these provisions of State law
did not afford TPR children in foster care the required protections.
The State did not dispute that no probate court hearing would be held
unless an adoptive placement was actually proposed nor did the State
dispute that periodic reviews in juvenile court were held only if the
judge so decided. Even in the event that the juvenile court judge
decided to continue to conduct reviews, the State acknowledged that such
reviews need not be held on a regular basis. (State's brief dated
January 9, 1984, p. 15, as corrected by State's letter dated March 28,
1984) The failure to provide for regularly scheduled juvenile court
reviews is also evident from the language of section 659(a), which
provides in pertinent part that "(an) order of the court may . . . be
amended, modified, set aside or terminated by that court at any time
upon petition therefor by a party or on its own motion on the ground
that changed circumstances so require in the best interests of the
child." It is clear from the use of the word "periodically" in
section
475(5)(C) of the Act that a state must provide for hearings held at
regularly recurring intervals. It is not sufficient that in practice
each child might have had dispositional hearings subsequent to the
initial one or that such hearings might have taken place on a regular
basis /6/ since section 475(5) of the Act requires procedures "assuring"
that each child will be afforded the protections detailed in that
section. The provisions of State law relied on by the State do not
assure a TPR child in foster care of periodic dispositional hearings.
(6) The State also argued that administrative reviews conducted by
the State at six-month intervals pursuant to section 475(5)(B) (which
the State continued to hold after the termination of parental rights)
satisfied the requirement for periodic dispositional hearings following
the initial dispositional hearing. Specifically, the State contended
that "a decision by the juvenile court to refrain from holding
discretionary Sec. 659 hearings for a TPR child can reasonably be
construed to amount to approval of the results of the administrative
hearings held at six months intervals." (State's reply brief dated March
27, 1984, p. 7) This argument does not account for the possibility that
the juvenile court judge may instead choose to conduct hearings himself
pursuant to section 659. As discussed above, this would not fulfill the
requirement for periodic dispositional hearings. Even disregarding that
defect, however, we are not persuaded that the situation described by
the State fulfills the statutory requirement for a dispositional hearing
"in a family or juvenile court or another court . . . of competent
jurisdiction, or by an administrative body appointed or approved by the
court . . ." since the State presented no evidence of any appointment or
approval by the juvenile court authorizing the State to conduct
dispositional hearings. There is no indication in the record that the
juvenile court judge was required to make, or even as a matter of
practice made, any formal determination not to continue review hearings
for a TPR child. Such a determination, depending upon its content,
might arguably be regarded as an appointment of the State to hold
dispositional hearings. (However, judicial approval simply of the
results of the State's six-month administrative reviews would not be
sufficient since section 475(5)(c) requires apporval of an
"administrative body" to conduct dispositional hearings.) We see no
basis for implying merely from the absence of further review by the
juvenile court judicial approval of the State to conduct dispositional
hearings. The State noted, without further discussion, that the
six-month reviews were subject to quasi-judicial and judicial appeals.
(State's brief, pp. 10, 16) However, the opportunity for a judicial
appeal following the review clearly fails to satisfy the requirement for
judicial approval of the State to conduct the review (if indeed this was
the State's intended argument).
Both the State's six-month reviews and the section 659 hearings held
by the juvenile court, as well as the probate court hearings, may also
fall short of satisfying the periodic dispositional hearing requirement
since it appears (7) that neither the State nor the courts had authority
to make all the determinations specified in the Act. Section 475(5)(c)
states, inter alia, that the "hearing shall determine the future status
of the child (including . . . whether the child . . . should be placed
for adoption . . . ." The State indicated, however, that the probate
court must approve adoptive placements, which would seem to preclude the
State or the juvenile court from making a determination in this requard.
Conversely, the probate court's authority may have been limited to
approving adoptive placements, precluding it from determining whether a
child "should be continued in foster care for a specified period . . .
or . . . on a permanent or long-term basis . . . ." In addition, since
33 V.S.A. 659 provides that the juvenile court may modify its previous
order with respect to a child's status, this may mean that the State
could not make any determinations affecting the child's status which
were within the court's jurisdiction.
The State argued in addition that the Agency's finding of
ineligibility should not be sustained because "the statute does not
clearly spell out the standards which form the basis of the . . .
non-compliance action . . . ." (State's brief dated January 9, 1984, p.
13) The State quoted in this connection a December 13, 1983 letter in
which the Assistant Secretary for Human Development Services stated that
the statute was unclear and that the Agency had agreed to "base the
compliance reviews on reasonable State interpretations of the statute."
(Id.) We are not persuaded, however, that the statute can reasonably be
interpreted to allow the system described by the State to fulfill the
dispositional hearing requirement with respect to TPR children. It is
clear in this case that the State deviated from this requirement since
there was no assurance that periodic hearings would be conducted by a
court following the initial dispositional hearing, since there was no
court appointment or approval of an administrative body to conduct such
hearings, and since authority to make all required determinations
appears to have been lacking. Any ambiguity in the application of this
requirement on different facts, or (for the reason noted below) with
respect to other provisions of section 427, is not relevant here.
Accordingly, we conclude that the State failed to provide procedures
for assuring periodic dispositional hearings for TPR children. In light
of this conclusion, we need not address whether there was any basis for
the other Agency findings (i.e., that initial dispositional hearings
were not (8) held within 18 months of placement, and that dispositional
hearings were not required where not requested by a party) on which the
determination of ineligibility was based.
Unequal Enforcement of Section 427 Requirements
The State also argued on appeal that the Agency did not enforce
section 427 requirements in the same manner with respect to all states.
Specifically, as relevant here, the State asserted that 22 other states
failed to hold dispositional hearings at clearly defined time periods
for either particular categories of or all children in foster care, and
that of these 22 states, 18 were found by the Agency to be eligible for
fiscal year 1981 funds. (State's letter dated May 10, 1984, Exhibit A,
p. 2) /7/ The State argued that unequal enforcement of the section 427
requirements was evidence of the lack of a clear program-wide policy and
that the finding of non-compliance as to it should be reversed on this
basis. The State also argued that the constitutional rights of due
process and equal protection were denied to children in the State, who
were unfairly deprived of child welfare services on the basis of an
enforcement action which was inconsistent with the action taken with
respect to other states. (State's brief dated January 9, 1984, pp.
24-25)
Even assuming that the State was treated differently from other
states, however, we conclude that that fact would have no impact on this
appeal. As discussed above, we find here that the State failed to meet
the requirement for periodic dispositional hearings in the case of TPR
children since there was no provision for regularly recurring hearings
conducted by a court and there was no court approval of an
administrative body to conduct such hearings. This (9) constitutes a
clear violation of a statutory requirement which, given the facts of
this case, is unambiguous. If the statutory requirement at issue were
not clear, it might be proper to consider whether the Agency had adopted
an interpretation with respect to other states which should have been
applied to the appellant. However, to argue that unequal enforcement is
evidence that the requirement at issue is unclear stands things on their
head. /8/
Thus, while we do not condone any failure by the Agency to enforce
this statutory requirement in other appropriate cases, we think any such
failure is irrelevant here. The Board is bound by all applicable laws
and requlations. 45 CFR 16.14. Where reversing the Agency's adverse
determination would be in conflict with the statute under any reasonable
reading, the Agency's alleged failure to enforce the statute
consistently is insufficient as a basis for reversal.
We agree with the Agency, moreover, that the constitutional rights of
children in the State were in no way violated by the Agency's
determination that the State was ineligible for the section 427 funds.
It was the State's failure to provide all the procedural safeguards
required by section 427 which rendered the State ineligible for the
funds and the funds unavailable for additional child welfare services.
The fact that children in other states may have benefited from the
expenditure of funds for which those states may not have been eligible
has no bearing on the situation of this State's children. (We note in
any event that the children would not have been affected in fiscal year
1981 by the Agency's finding of non-compliance for that year since the
fiscal year 1981 funds were apparently spent by the State before the
Agency's determination was made.)
(10)
It is arguable that if the Agency had discretion to waive the
statutory requirement at issue here, the Board might properly consider
whether that discretion was exercised in an arbitrary and capricious
manner with respect to the appellant. However, we see nothing in the
statute that gives the Agency discretion to excuse the violation of a
significant statutory requirement, as the State would have it do. At
most, the language of section 427 gives the Agency discretion to waive
minor violations. (See Ohio Department of Public Welfare, Decision No.
472, October 31, 1983, p. 4) /9/ Thus, we cannot say that it was an
abuse of discretion for the Agency to have enforced the statutory
requirement in question here regardless of any alleged inaction in other
states.
The State also argued that the Agency's system for reviewing
compliance with section 427 was procedurally defective in that it could
potentially result in unequal enforcement. (State's brief dated January
9, 1984, pp. 22-23) However, in light of our conclusion that any
disparity in the actual treatment of different states was irrelevant, we
need not consider the procedures which may have created this situation.
Estoppel
The State also argued that it was "entitled to prevail on grounds of
estoppel. . . ." (State's reply brief dated March 27, 1984, p. 21)
Absent any elaboration of the basis for this argument, and in view of
the Board's prior clear rulings on this issue, it does not warrant our
further consideration. (See, for example, Ohio Department of Public
Welfare, supra, at pp. 10-11)
(11) Conclusion
For the foregoing reasons, we find that the State failed to have
appropriate procedures in fiscal year 1981 for periodic dispositional
hearings in the case of TPR children in foster care as required by
section 475(5)(c) of the Act. Accordingly, we sustain the Agency's
determination that the State was ineligible for the section 427 funds
awarded for that year. /1/ The additional funds are a proportional
share of the amount appropriated for title IV-B which exceeds
$141,000,000. /2/ The amount of funds awarded to the State is
not specified in the record. /3/ The State noted on appeal that the
Agency had not raised certain objections to the State's
provisions for dispositional hearings until nine months after the close
of fiscal year 1981. (State's reply brief dated March 27, 1984, p. 8)
To the extent that this was intended as an argument that the Agency's
objection came too late, we note that the Board has held that it was
reasonable for the Agency to award section 427 funds based on states'
self-certifications and to verify the self-certifications at a later
date. (Ohio Department of Public Welfare, Decision No. 472, October 31,
1983, pp. 6-7) /4/ The State argued that it should not have been
found out of compliance as a matter of policy where its percentage of
compliance in the case record review may have been higher than that of
other states found eligible for fiscal year 1981 funds. (State's brief
dated January 9, 1984, p. 24) However, in our view, the State's
standing in the case record review relative to other states is
irrelevant where the other states met the threshold level of compliance
set by the Agency. /5/ Section 658(a) originally required
hearings for other than TPR children at two-year intervals and was
amended effective May 3, 1982 to require hearings at 18-month intervals.
The State asserted, however, that on July 28, 1981 it instituted a
policy to hold these hearings at 18-month intervals. (State's brief
dated January 9, 1984, p. 8) /6/ Regulations issued in 1983
implementing section 427 require that "the dispositional hearing must
take place within 18 months of the date of the original foster care
placement and within reasonable, specific, time-limited periods to be
established by the State." 45 CFR 1356.21( e). The adoption of this
requirement arguably indicates that the Agency saw some ambiguity, which
it sought to clarify, in the language of section 475(5)(c) mandating
hearings "periodically thereafter." However, it is clear in any event
that the provisions of State law relied on here were not adequate in
that they did not require any further hearings. /7/ The Agency
indicated that it saw no need to comment specifically on the truth of
the State's assertion with respect to each state involved since the
facts were in its view irrelevant. However, the Agency did assert
generally that there were some errors in the State's analysis of how
different states were treated. (May 31, 1984 telephone conference call,
statement of Agency counsel) As indicated below, we do not rule here on
whether the State was treated differently from other states with respect
to the requirement for periodic dispositional hearings in the case of
TPR children with which we have found the State failed to comply. /8/
Even if the statute were unclear, proof that some other states with
provisions comparable to this State's for dispositional hearings were
found eligible for fiscal year 1981 funds might not be sufficient to
support a finding that the Agency had adopted an interpretation which
should have been applied in this case if still other states were found
ineligible for the funds. That situation would not clearly reflect a
settled Agency interpretation. However, it might indicate the presence
of more than one reasonable interpretation. /9/ The State in
fact argued that its alleged non-compliance was insubstantial since
changes made in the State's dispositional hearing procedures which
resulted in a finding of eligibility for fiscal year 1982 funds meant
that the non-compliance "did not exist long enough to create the 'foster
care drift' which the Adoption Assistance and Child Welfare Act seeks to
prevent." (State's reply brief dated March 27, 1984, p. 21) However,
since the statute authorizes a separate grant of funds for each fiscal
year, the degree of non-compliance is appropriately judged on the basis
of each year's performance and not on the basis of whether the
underlying purpose of section 427 was ultimately met.
NOVEMBER 14, 1984