GAB Decision 596
November 21, 1984
Virginia Department of Social Services;
Settle, Norval; Teitz, Alexander Ballard, Judith
Docket No. 84-65
The Virginia Department of Social Services (State) appealed a
determination by the Office of Human Development Services (Agency) that
the State was ineligible for fiscal year 1982 funds under section 427 of
title IV-B 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.
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 Act.
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 1982, a state did not comply with the applicable requirements in at
least 80% of the cases sampled, the Agency required the return of the
section 427 funds.
The Agency initially approved the State's written request for
additional funds based on a written certification by the State that it
met the requirements of section 427. However, (2) following a review
conducted to validate the State's self-certification, /2/ the Agency
advised the State that it was ineligible for fiscal year 1982 funds
since it failed to comply with the Act in at least 80% of the cases
sampled. Specifically, the Agency found that dispositional hearings,
one of the safeguards specified in the Act, were either not held or were
not timely in the required percentage of cases. (State's appeal file,
Exhibit L, p. 1) For the reasons discussed below, we sustain the
Agency's determination that the State failed to meet the requirements of
section 427 in fiscal year 1982.
Applicable Law
As one of the conditions for the receipt of additional child welfare
funds, section 427(a)(2)(B) requires that a state have implemented and
be operating to the satisfaction of the Secretary--
A case review system (as defined in section 475(5)) for each child
receiving foster care under the supervision of the State. . . .
Section 475(5) provides that--
(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 (3) continuing necessity for and appropriateness of the
placement, the extent of compliance with the case plan, and the extent
of progress which has been made toward alleviating or mitigating the
causes necessitating placement in foster care, and to project a likely
date by which the child may be returned to the home or placed for
adoption or legal guardianship, and
(C) with respect to each such child, procedural safeguards will be
applied, among other things, to assure each child in foster care under
the supervision of the State of a dispositional hearing to be held, in a
family or juvenile court or another court (including a tribal court) of
competent jurisdiction, or by an administrative body appointed or
approved by the court, no later than eighteen months after the original
placement (and periodically thereafter during the continuation of foster
care), which hearing shall determine the future status of the child
(including, but not limited to, whether the child should be returned to
the parent, should be continued in foster care for a specified period,
should be placed for adoption, or should (because of the child's special
needs or circumstances) be continued in foster care on a permanent or
long-term basis); and procedural safeguards shall also be applied with
respect to parental rights pertaining to the removal of the child from
the home of his parents, to a change in the child's placement, and to
any determination affecting visitation privileges of parents.
Agency's Findings
The State was found eligible for section 427 funding for fiscal year
1981, the first year for which funding was available. (State's appeal
file, Exhibit D) For fiscal year 1982, although the Agency determined
that the State had maintained appropriate policies and procedures for
implementing the section 427 requirements, the Agency found that in 27
of 89 cases reviewed, /3/ the State did not comply (4) with the
dispositional hearing requirement in section 475(5)(C) of the Act. The
Regional Office's report on the case record review addressed this
finding as follows:
The primary reason for the lack of timely dispositional hearings is
that local juvenile courts are not accepting petitions for a hearing by
the local Department of Welfare. This is occurring in spite of the fact
that legislative changes have been made to require such hearings. Some
juvenile court judges have demonstrated that they are independent and
will not acccept petitions for hearings on foster care children.
Another reason for the lack of prompt dispositional hearings
concerned the periodicity of subsequent hearings. In the FY 1981
review, Virginia required that hearings be held every 12 months. In FY
82, the requirement was changed by amending the state code to
"periodically thereafter." The review for FY 1982 was conducted on
the
same basis as the FY 1981 review based on instructions to federal staff.
This resulted in the identification of several cases for which a hearing
was held in FY 82, however, the cases were ruled not acceptable because
a hearing had not been held 12 months earlier.
(State's appeal file, Exhibit I, p. 5)
The record does not indicate how many of the 27 cases were found
unacceptable due to the lack of a timely initial dispositional hearing,
required within "eighteen months after the original placement," and
how
many were found unacceptable due to the lack of a timely subsequent
hearing, to be held "periodically" after the initial hearing. (It
is of
course possible that a case could have been found unacceptable on both
grounds.) The Agency asserted that its determination that the State was
ineligible for section 427 funds in fiscal year 1982 was justified on
either ground. (Agency's brief dated September 19, 1984, p. 12) The
State did not dispute that cases were failed by the Agency in (5)
sufficient numbers (more than 20%) to support a determination of
ineligibility due to lack of timely initial dispositional hearings.
The State did assert that the Report on State Eligibility found that
the State complied with the requirement in section 475(5)(C) for
subsequent periodic dispositional hearings. (State's reply brief dated
October 19, 1984, p. 7) However, the section of the report cited by the
State concluded only that the State met the separate requirement in
section 475(5)(B) for a periodic administrative review. Nevertheless,
in view of our conclusion, discussed below, that the State did not
comply in 80% of the cases with the requirement for a timely initial
dispositional hearing, we need not reach the question whether the State
complied with the requirement for timely subsequent periodic
dispositional hearings in a sufficient number of cases.
State's Position
To determine whether the State complied with the dispositional
hearing requirement, the Agency looked at whether a hearing was held in
each case pursuant to section 16.1-282 of the Code of Virginia.
(Agency's brief dated September 19, 1984, pp. 7-8) That section,
captioned "Foster Care Review," requires that, within 16 months of
a
child's initial placement in foster care, the local board of public
welfare or social services or the child welfare agency having legal
custody of the child file a petition with the court. The petition must,
among other things, include a copy of the foster care plan previously
filed for the child, describe the foster care placement, describe the
contacts between the child and parents, set forth the manner in which
the foster care plan was or was not complied with and the extent to
which its goals were met, and set forth the disposition sought and the
grounds therefor. The section further requires that the court schedule
a hearing within 60 days of receipt of the petition and provide notice
of the hearing and a copy of the petition to certain specified persons
entitled to participate as parties in the hearing. (State's appeal
file, Exhibit O, p. 2) /4/
(6) As indicated previously, the juvenile court judges failed to hold
hearings within the time period specified by section 16.1-282. However,
the State took the position that it satisfied the dispositional hearing
requirement in section 475(5)(C) of the Act even though it did not fully
comply with this provision of State law. Specifically, it argued that
"when all parties and the juvenile court judge are sent a copy of the
petition and relevant attachments which have been filed with the court
by the local agency pursuant to section 16.1-282 of the Code of
Virginia, the requirements of Sec. 475(5)(C) are met at that time." The
State noted that section 475(5)(C) requires "procedural safeguards . .
.
to assure each child in foster care . . . of a dispositional hearing .
. .," and contended that the requisite procedural safeguards were
provided as long as all steps up to the holding of the hearing were
taken. (State's brief dated August 15, 1984, pp. 9-10). /5/
(7) The State also argued, in the alternative, that if a
"face-to-face" hearing were required by section 475(5)(C) of the Act,
that requirement was satisfied by the State's procedures pursuant to
sections 16.1-279 and 16.1-281 of the Code of Virginia. Section
16.1-279, captioned "Disposition," provides that where a child is
found
to be abused or neglected, the court may make any of several orders of
disposition to protect the welfare of the child, including transferring
legal custody to a relative or other individual qualified to care for
the child, to a child welfare agency, proviate organization or facility
licensed or authorized by law to care for such child, or to a local
board of public welfare or social services. Other options include
permitting the child to remain with his or her parent, guardian, legal
custodian or other person standing in loco parentis subject to certain
conditions and limitations, or terminating the rights of the parent,
guardian or legal custodian. (State's appeal file, Exhibit N, pp. 1-2)
Section 16.1-281, captioned "Foster care plan," requires that where
legal custody is given to a local board of public welfare or social
services or to a child welfare agency, the board or agency file a foster
care plan for the child with the court within 60 days of the order of
disposition made under section 16.1-279. A copy of the foster care plan
is required to be sent by the court to the attorney for the child, the
child's parents or another person standing in loco parentis at the time
the board or agency obtained custody, and any other interested persons.
The section further provides that--
Any party receiving a copy of the plan may petition the court for a
review of the plan. The judge shall review (8) each petition so filed
to determine whether there is good cause for a hearing on the plan.
(State's appeal file, Exhibit O, p. 1)
The State argued that all of the requirements in section 475(5)(C) of
the Act for a dispositional hearing were found "either in Sec. 16.1-279
and/or Sec. 16.1-281." (State's brief dated August 15, 1984, p. 8) The
State therefore requested that the Agency take a new sample of cases to
determine if the State complied with sections 16.1-279 and 16.1-281 in
the requisite number of cases necessary to show compliance with the
dispositional hearing requirement. (Id., pp. 9, 14)
The State also argued generally that "the provisions of Sec. 475(5)(
C) were far from clear in FY 1982 and could easily have been the subject
of a number of different interpretations," including the ones advanced
by the State in this case. (State's brief dated August 15, 1984, p. 10)
The State pointed out that there were no federal regulations or
guidelines interpreting section 475(5)(C) prior to the end of fiscal
year 1982 (State's reply brief dated October 19, 1984, pp. 1-2) and that
the Agency head had publicly acknowledged that "the statute was not
sufficiently clear in all its aspects." (Id., p. 3, quoting letter frodm
Hardy to Springer dated December 13, 1983) The State also contended that
since the Agency had found the State eligible for fiscal year 1981
funds, it was "inappropriate to now indicate that Virginia's approach
and interpretations were wrong during FY 1982." (State's brief dated
August 15, 1984, p. 12)
Discussion
We find that the mere filing of a petition under section 16.1-282 of
the Virginia Code does not constitute compliance with the dispositional
hearing requirement in section 475(5)(C) of the Act. We further find
that, even if the State complied with sections 16.1-279 and 16.1-281 of
the Virginia Code, this would not necessarily mean that the State held
timely dispositional hearings within the meaning of section 475(5)(C) in
a sufficient number of cases. These findings are discussed separately
below.
The State's general allegation that the statute was unclear does not
provide a basis for overturning the disallowance here. As the State
noted, the Agency has acknowledged that (9) the statute is not clear "in
all its aspects" and that there should be some flexibility in evaluating
states' compliance for periods prior to the effective date of the
regulations. However, we do not think this precludes the Agency from
enforcing the statutory provisions where they are clear or rejecting a
state's interpretation which is unreasonable in light of the statutory
purposes. While the requirement for a dispositional hearing may have
been susceptible to varying interpretations, the specific
interpretations advanced by the State here are not in our view
reasonable ones. (See Arkansas Department of Human Services, Decision
No. 553, July 16, 1984, p. 12) Moreover, there is no evidence in the
record that the State made the interpretations advanced here known to
the Agency during the fiscal year 1981 review. In response to an August
4, 1981 request by the Agency for clarification regarding how State
policy and practice "insure that all children in foster care have a
dispositional hearing no later than 18 months after the original
placement," the State stated in part that--
Sections 16.1-281 and 16.1-282, establish the legal base for judicial
and administrative review of foster care. Section 63.1-56 of the Code
of Virginia requires that children in foster care in excess of 90 days,
except those children permanently entrusted for purposes of adoption,
have a dispositional hearing.
(State's appeal file, Exhibit B, p. 1, and Exhibit C, p. 1) However,
there is no evidence that the Agency accepted section 16.1-281 as
meeting the requirement for a dispositional hearing. The Agency could
have concluded after reviewing the Code sections cited that section
16.1-282 alone satisfied the requirements of the Act when implemented in
full. Accordingly, the finding of eligibility for fiscal year 1981 is
not necessarily inconsistent with the finding of ineligibility for
fiscal year 1982.
Section 16.1-282
The State maintained that review by the court of a petition, filed by
the board or agency having custody of a child in foster care, regarding
the future status of the child constituted a dispositional hearing if
all interested parties were merely given notice of the petition. We
find this position untenable.
(10) A hearing can take many forms, and, in some circumstances, a
requirement for a hearing may be satisfied by a paper review rather than
an in-person hearing. Gray Panthers v. Schweiker, 652 F.2d 146, 148 fn.
3 (D.C. Cir. 1980). However, section 475(5)(C) requires that the
dispositional hearing "be held . . . in a court. . . ." Apparently,
the
Agency in its brief was interpreting this language to mean an appearance
in court before a judge. The State presented no argument or evidence
that all factors relating to a decision on the child's disposition could
be adequately considered without an in-person hearing. While no new
information might be presented at a hearing if the proposed disposition
was unopposed, it seems likely that, where the disposition was opposed,
relevant information that would otherwise not be considered might be
brought out at a hearing. In the latter situation, a face-to-face
hearing would better serve the underlying purpose of the Act to protect
the interests of the child.
In this case, however, we do not need to reach the issue of whether
an in-person hearing is the only type of hearing that could satisfy the
Act. The State implied that the court would review the petition
submitted by the child's custodian pursuant to section 16.1-282 and that
this review could be considered a hearing. However, the State did not
allege that such a review actually took place in any of the cases failed
by the Agency. Furthermore, the State did not allege that such a review
would result in a court order determining the disposition of the child.
Thus, there is no basis for finding that the State satisfied the
requirement for a dispositional hearing in any of the cases found
unacceptable, even assuming that an in-person hearing was not required.
In arguing that section 16.1-282 provides the requisite "procedural
safeguards" to "assure" a dispositional hearing the State ignores
the
statutory wording requiring that "procedural safeguards will be applied.
. . ." As noted previously, the Agency evaluated compliance with section
427 on two levels, determining both whether a state had established
policies or procedures for implementing the requirements of the Act and
whether the policies or procedures were implemented in practice. They
Agency agreed that section 16.1-282 was adequate as a policy or
procedure assuring a dispositional hearing. The basis for the Agency's
finding of ineligibility was that the State did not fully implement the
provisions of this section.
(11) Sections 16.1-279 and 16.1-281
The State maintained that a hearing held on the foster care plan
filed by the board of public welfare or social services or the child
welfare agency having custody of the child constituted a dispositional
hearing. This position is also untenable.
Section 475(5)(C) requires that a dispositional hearing be held "no
later than eighteen months after the original placement . . . (to)
determine the future status of the child (including . . . 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 .
. . be continued in foster care on a permanent or long-term basis) . .
. ." The purpose of the dispositional hearing is thus to review the
original foster care placement after a period not exceeding eighteen
months and to determine whether that placement or some alternate
disposition is now in the child's best interest. It is not clear from
sections 16.1-279 and 16.1-281 that a hearing on the foster care plan
would serve this purpose. A hearing which considered whether the board
or agency which was originally given custody of the chid has drawn up an
appropriate plan for the child's current placement would apparently
satisfy the requirements of section 16.1-281 but would not necessarily
constitute a dispositional hearing. Section 16.1-281 requires that the
foster care plan, which is the designated subject of the hearing,
describe--
(i) the programs, care, services and other support which will be
offered to the child and his or her parents and other prior custodians,
(ii) the participation and conduct which will be sought from the child's
parents and other prior custodians, (iii) the visitation and other
contacts which will be permitted between the child and his or her
parents and other prior custodians, and (iv) the nature of the placement
or placements which will be provided for such child.
(State's appeal file, Exhibit O, p. 1) Section 16.1-281 also states
that the foster care plan should "be designed to lead to the return of
such child to his or her parents or other prior custodians within the
shortest practicable time which shall be specified in the plan," or
explain why some other disposition (e.g., adoption, permanent foster
care) is the goal. However, a hearing in the foster care plan could
(12) conceivably consider only one narrow aspect of the plan (such as
visitation rights) and not result in an order determining the
disposition to follow the current placement.
We do not conclude here that the State could not have held hearings
pursuant to section 16.281 which complied with the requirement for a
dispositional hearing. The Agency itself stated in a letter to the
State dated December 1, 1982 that this requirement "could be met with
the court hearing on a properly completed case service plan," and, more
generally, that "(a) dispositional hearing can result from a petition
filed for any issue. . . ." (Agency's appeal file, Exhibit 4) The Agency
further stated that "(the) test of a dispositional hearing concerns its
purpose and results not when it occurs within 18 months of placement nor
who presents the petition nor for what reason." (Id.) Although a hearing
more limited in scope might comply with section 16.1-281, that section
does not preclude a hearing at which the future status of the child is
determined and the appropriate disposition is ordered. We note,
however, that there is no evidence that any hearings held pursuant to
section 16.1-281 satisfied in substance the requirement for a
dispositional hearing.
Moreover, the State did not show, nor even allege, that any section
16.1-281 hearings were, in fact, held in any of the disputed cases. The
relief requested by the State here was that the Agency conduct a new
review to determine whether the State complied with sections 16.1-279
and 16.1-281. However, since section 16.1-281 requires a hearing only
if the court in reviewing a party's petition finds good cause, the State
might have complied with this section even if no hearing were held. /6/
Accordingly, no purpose would be served in determining whether the State
complied with sections 16.1-279 and 16.1-281.
(13) As indicated above, the State appeared to argue that sections
16.1-279 and 16.1-281, taken together, satisfied the dispositional
hearing requirement. The State also stated, in describing section
16.1-279 alone, that "(it) is at this hearing that the future status of
the child is determined." (State's brief dated August 15, 1984, p. 7) We
reject as unsound any argument that a judicial proceeding which
determines that a child is abused or neglected and where such a child
should be placed initially constitutes a dispositional hearing within
the meaning of section 475(5)(C) of the Act. The Act requires that a
dispositional hearing be held "no later than eighteen months after the
original placement. . . ." While the Agency acknowledged that (there) is
no minimum time period after placement when a hearing could be
considered a dispositional hearing," (Agency's appeal file, Exhibit 4),
clearly a proceeding which results in an order for the original
placement does not occur, as required, "after placement." /7/
Accordingly, compliance with section 16.1-279 alone would not be
adequate to satisfy the dispositional hearing requirement.
Conclusion
For the foregoing reasons, we find that the State failed to hold
timely dispositional hearings in 80% of the cases sampled. Accordingly,
we sustain the Agency's determination that the State was ineligible for
$1,503,800 which was subject to the requirements of section 427 in
fiscal year 1982. /1/ The additional funds are a proportional share of
the amount appropriated for title IV-B which exceeds
$141,000,000, in this case, $550,490. The amount in dispute in this
case also includes $795,495 of title IV-E funds transferred to title
IV-B and $157,815 of title IV-E funds awarded for placements made
pursuant to voluntary placement agreements. (State's appeal file,
Exhibit L, p. 3) The title IV-E funds are subject to the requirements of
section 427 under section 474( c) of title IV-E. /2/ The
determination appealed from was based on a case record review conducted
in October 1983. (State's appeal file, Exhibit I) The results of an
earlier case record review conducted in January 1983 -- which also would
have required a finding of ineligibility -- were invalidated since the
Agency determined that the sample improperly excluded some cases.
(State's appeal file, Exhibit
(Report on State Eligibility) stated that 32 of the 89 cases reviewed
were unacceptable. The Agency found that 27 of the 32 unacceptable
cases did not have timely dispositional hearings. The report did not
state why the other five cases were judged unacceptable. (State's
appeal file, Exhibit I, p. 5) Even if only 27 cases were unacceptable,
however, the State was far from the 80% level required for a
determination of eligibility. /4/ The record indicates that the
Virginia Code in 1981 permitted a judge to determine if there was good
cause to hold a hearing for a child in foster care, but that the Code
was amended in 1982 to require judges to hold hearings. (State's appeal
file, Exhibit I, p. 7) The State did not argue that any of the disputed
cases were governed by the earlier code provision. In a response to the
survey report, the Commissioner of the Virginia Department of Social
Services did state that "since the federal government accepted the laws
and policies in effect in 1981, no review has shown that laws at that
time were not being followed by this State." Appeal file, Tab K.
However, the survey report which supported the Agency's finding of
conditional compliance for 1981 specifically noted that, although State
law at that time was permissive on holding hearings, State policies
insured that hearings were held in most cases and that the code had been
amended to require hearings. Appeal file, Tab D. /5/ The State
did not pursue on appeal an earlier argument justifying the lack of
timely dispositional hearings under section 16.1-282 on the ground that,
because of the separation of powers between the executive and judicial
branches of Virginia government, State agencies could only petition for
dispositional hearings but could not assure that they were held.
(State's appeal file, Exhibit K, p. 2) The Board rejected a similar
argument in Arkansas Department of Human Services, Decision No. 553,
July 16, 1984, stating that -- It is implicit in Section 427 that states
must provide the resources necessary to implement the required
safeguards and insure that courts understand their role in implementing
these safeguards. To recognize a court's lack of resources or diligence
as an excuse for non-compliance would defeat the purpose of the statute.
(p. 8) /6/ It is also apparent that, since it was within the court's
discretion whether or not to hold a hearing, sections 16.1-279 and
16.1-281 were inadequate as policies or procedures assuring that
dispositional hearings would be held. (See Vermont Department of Social
and Rehabilitation Services, Decision No. 546, June 27, 1984, p. 5)
Nevertheless, we see no reason why section 16.1-282 could not have been
used to satisfy this aspect of the dispositional hearing requirement in
the event that satisfactory hearings had actually been held either under
that section or under section 16.1-281 in the required number of cases.
/7/ Indeed, prior to removal from the home and placement with the
appropriate agency, the child would not be a child in foster care to
whom section 475(5)(c) would apply. It is conceivable that an abused or
neglected child might have been temporarily placed in foster care, on an
emergency basis, and that, subsequently, a court might hold a hearing
and enter a disposition order under 16.1-279. In such a case, the State
might have considered the temporary placement to be the "original
placement." But the State did not show, nor even allege, that this
happened in any of the disputed cases here.
MARCH 19, 1985