GAB Decision 698
October 18, 1985
District of Columbia Department of Human Services;
Ballard, Judith A.; Garrett, Donald F. Settle, Norval D. (John)
Docket No. 85-99
DECISION
The District of Columbia Department of Human Services (District,
Appellant) appealed a determination by the Commissioner, Administration
for Children, Youth and Families, Office of Human Development Services
(Agency), that the District was ineligible for $29,399 awarded under
section 427(a) of title IV-B of the Social Security Act (Act) for fiscal
year 1983 and disallowing $148,291 claimed under title IV-E of the Act
for foster care maintenance payments made in the case of children
removed from their homes pursuant to voluntary placement agreements
(voluntary foster care maintenance payments) in the same fiscal year.
Section 427(a) provides that a state /1/ may receive additional funds
for child welfare services beyond the amount available to each state
under section 420 of the Act if the state meets certain requirements for
the protection of children in foster care. /2/ Pursuant to section
472(d) of title IV-E, the section 427 protections also apply where
funding is claimed under title IV-E for voluntary foster care
maintenance payments.
The Agency initially approved the District's request for additional
funds under section 427(a) based on a written certification by the
District that it met the requirements of that section. However,
following a review conducted to validate the District's
self-certification, the Agency advised the District that it was
ineligible for fiscal year 1983 funds since its policies did not call
for dispositional hearings for each child in foster care, one of the
safeguards(2) required by section 427. Specifically, the Agency found,
and the District did not dispute, that the District's policies did not
provide for dispositional hearings for children who were placed in
foster care after they had been voluntarily relinquished by their
parents. The District argued, however, that dispositional hearings were
not required for such children. For the reasons discussed below, we
conclude that dispositional hearings were required for voluntarily
relinquished children and that therefore the District was ineligible for
the section 427 funds awarded for fiscal year 1983 and, in addition, its
claim under title IV-E for voluntary foster care maintenance payments
was properly disallowed.
Applicable Law
As one of the conditions for the receipt of additional child welfare
funds under title IV-B, 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 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(3) family or juvenile court or another court (including a tribal
court) of competent jurisdiction, or by an administrative body appointed
or approved by the court, no later than eighteen months after the
original placement (and periodically thereafter during the continuation
of foster care), which hearing shall determine the future status of the
child (including, but not limited to, whether the child should be
returned to the parent, should be continued in foster care for a
specified period, should be placed for adoption, or should (because of
the child's special needs or circumstances) be continued in foster care
on a permanent or long-term basis); and procedural safeguards shall
also be applied with respect to parental rights pertaining to the
removal of the child from the home of his parents, to a change in the
child's placement, and to any determination affecting visitation
privileges of parents.
Section 472(d) of title IV-E provides that:
. . . Federal payments may be made . . . with respect to amounts
expended by any state as foster care maintenance payments . . . in the
case of children removed from their homes pursuant to voluntary
placement agreements . . . only if (at the time such amounts were
expended) the State has fulfilled all of the requirements of section
427(b). /3/
Section 427(b) requires, among other things, that states have
implemented and be operating "the program and systems specified in
subsection (a)(2). . . ."
Section 1356.21(e) of 45 CFR (1983) provides in pertinent part that:
If a State chooses to claim FFP for the costs of voluntary foster
care maintenance payment . . . or certifies compliance with the
requirements of section 427 of the Act, it must, among other
requirements, meet the requirements for dispositional hearings in
section 475(5)(C) of the Act. . . . The provisions of . . .(4) section
475(5)(C) of the Act must apply to all children under the responsibility
for placement and care of the title IV-E/IV-B State agency except:
(1) For those children who are placed in a court sanctioned permanent
foster family home placement with a specific care giver, no subsequent
dispositional hearings are required during the continuation of that
specific permanent placement. If the foster care placement of such a
child is subsequently changed, the child is again entitled to
dispositional hearings.
(2) For those children who are free for adoption and are placed in
adoptive homes pending the finalization of the adoption, no subsequent
dispositional hearings are required during the continuation of that
placement. If such a child is not adopted within a reasonable time
after placement, the child is again entitled to dispositional hearings.
This regulation was not effective until June 22, 1983 (see 48 Fed. Reg.
23104 (May 23, 1983)), following the beginning of the period involved in
this case.
Factual Background
Pursuant to section 1007 of Title 32, D.C. Code (1981), parents may
voluntarily relinquish their child to the custody of the District by
filing a legally executed relinquishment of parental rights in the
Family Division of the Superior Court for the District of Columbia.
This vests the District with parental rights and the authority to
consent to the adoption of the child. The District's written policy
requires that "(a) plan for securing an adoptive placement" for the
child be developed, generally within 30 days of the relinquishment. If
the child is not already in foster care at the time of the
relinquishment, the plan must be developed within 30 days after the case
is transferred from Intake to the Adoption Placement and Resources
Branch in the Department of Human Services. (Department of Human
Services Transmittal Letter No. 240, p. 6) Thus, the goal of the foster
care program for voluntarily relinquished children is from the outset to
place them for adoption.
Appellant's Arguments
The District argued that the requirement for dispositional hearings does
not apply to voluntarily relinquished children because no federal
funding was claimed for such children and because no purpose would be
served by a dispositional hearing. These arguments are discussed
separately below.(5)
No Claim for Federal Funding
The District asserted that it did "not claim federal funds for
voluntarily relinquished children." It argued that children in programs
which do receive federal funding and for whom dispositional hearings
were required would be unfairly penalized by a disallowance which
considered a class of children for whom no federal funds are requested.
(Appellant's brief dated July 30, 1985, p. 5)
The District apparently chose not to claim FFP which would have been
available under title IV-E for foster care maintenance payments on
behalf of voluntarily relinquished children. (Since the definition of a
voluntary placement at section 472(F) of the Act appears to cover a
broader class of children than those with respect to whom parental
rights have been voluntarily relinquished, it would have been possible
for the District to exclude voluntarily relinquished children from its
title IV-E claim for voluntary foster care maintenance payments.) It is
not clear, however, that no federal funds flowed to voluntarily
relinquished children since such children might have benefitted from
child welfare services for which the District claimed FFP under title
IV-B of the Act. /4/ Moreover, section 427(c) provides that funds
received pursuant to section 427 may be spent for purposes of complying
with the requirements of that section. (All remaining funds received
pursuant to section 427(a) must be spent for child welfare services as
defined in section 425(a).) Thus, even if the District did not claim FFP
for voluntarily relinquished children pursuant to its title IV-B or IV-E
plan, some federal funds might have been expended for their benefit
since the District apparently extended all safeguards required by
section 427(a), other than the dispositional hearing, to voluntarily
relinquished children.
(6)$% Moreover, we fail to see how the District's exclusion of such
children from any claim for FFP would affect its responsibilities under
section 427(a). That section, which applies not only to the District's
claim for additional title IV-B funds but also, by operation of section
472(d), to the District's claim under title IV-E for voluntary foster
care maintenance payments, requires in pertinent part that there be a
case review system "for each child receiving foster care under the
supervision of the State." This language is repeated in the requirement
at section 475(5)(C) for a dispositional hearing. The voluntarily
relinquished children at issue in this case were in the custody of the
District until adoptive placements could be found and were therefore
"receiving foster care under the supervision of the State" within
any
reasonable reading of these sections. Thus, on its face the statute
requires that voluntarily relinquished children be afforded
dispositional hearings in order for a state to be entitled to the funds
at issue here.
The language of section 427(a) quoted above contrasts sharply with the
requirement in section 471(a)(16) of title IV-E "for the development of
a case plan . . . for each child receiving foster care maintenance
payments under the State plan and . . . for a case review system which
meets the requirements described in section 475(5)(B) with respect to
each such child." This language makes it clear that title IV-E requires
a case plan and a periodic case review only for those children for whom
FFP is sought under title IV-E. The dispositional review requirement,
however, is activated not by section 471(a)(16) but by section 427(a)
and by section 472(d). The latter section refers to section 427(a),
which in turn refers to section 427(a). The language of section 427(a)
regarding those children subject to its requirements is considerably
broader than the corresponding language in section 471(a)(16). One can
infer from this that if Congress had wanted to limit the applicability
of section 427(a) to children with respect to whom FFP was claimed under
title IV-E, it would have used the more specific language of section
471(a)(16). Accordingly, it would be unreasonable to read the broader
language in section 427(a) as requiring a dispositional hearing only for
those children for whom FFP was claimed.
The distinction between section 427(a) and section 471(a)(16) was
pointed out by the Agency in ACYF-PIQ-81-1, dated October 20, 1981, in
which the Agency responded to a question by the State of Georgia
regarding whether children under the custody of the State agency to whom
no foster care maintenance payments were made were required to have a
case review every six months in order for the State to be eligible for
additional funds under section 427. The Agency stated that a periodic
review of each such child's case was(7) required, citing the language of
section 427(a)(2)(B) requiring a case review system "for each child
receiving foster care under the supervision of the State. . . ." Since
both the periodic review requirement and the dispositional hearing
requirement are part of the case review system referred to in section
427(a)(2)(B), the PIQ clearly put the District on notice of the Agency's
view regarding what children are subject to that section's requirements,
including not only the periodic review requirement, which the PIQ
expressly mentions, but also the dispositional hearing requirement.
(The District did not contend that it did not have notice of the PIQ
itself or that a different interpretation was articulated in other
guidance issued by the Agency.) /5/
Furthermore, there is in our view no implicit exception in section 427(
a) for those children who are not beneficiaries of federal funding.
Historically, conditions have been imposed on grants of federal
assistance without a direct nexus between the condition and the funded
activity. (See Cappalli, Federal Grants and Cooperative Agreements,
Sec. 10.05-10.06) Thus, the fact that voluntarily relinquished children
may not benefit directly from title IV-B child welfare services or from
title IV-E foster care maintenance payments does not invalidate the
requirement that a state afford a dispositional hearing to all foster
care children under the supervision of the state as a condition on the
receipt of the funds.
Purpose of Dispositional Hearing
The District argued that the purpose of a dispositional hearing was to
determine "the future status of the child" and asserted that this
purpose was met in the case of voluntarily relinquished children since
"at the moment of relinquishment, it is determined that the 'case plan
goal is adoption.'"(8)
(Appellant's reply brief dated September 23, 1985, pp. 2, 4) The
District also argued that the procedural safeguards which it imposes for
voluntarily relinquished children "fulfill the same (purpose) . . .
inherent in the dispositional hearing process" of expediting their
movement out of the foster care system. (Id., p. 4) The District noted
in support of this argument that in addition to requiring the
development of a plan for adoptive placement within 30 days after
relinquishment, it held administrative case reviews every six months
pursuant to section 475(5)(B) of the Act. (Appellant's letter dated
June 10, 1985, p. 2) Lastly, the District argued that since the Agency
had by regulation excepted certain children from the dispositional
hearing requirement on the ground that a dispositional hearing would
serve no purpose, an exception could properly be made here on the same
ground.
We are not persuaded that "the future status of the child" was
determined within the meaning of section 475(5)(C) by virtue of the fact
that the goal was adoption in the case of each voluntarily relinquished
child. It is clear from various provisions both in the D. C. Code and
in the District's written policy regarding voluntary relinquishment that
adoption does not always take place in such cases. The District's
written policy for voluntarily relinquished children provides that:
A child accepted by the Department for care through the process of
legal relinquishment is the responsibility of the Department until
adopted or, if adoption does not take place, until 21 years of age or
independence after age 18 years.
(Department of Human Services Transmittal Letter No. 240, p. 5) The
policy also requires that the parent(s) be notified "(W)hen a child has
been relinquished, but not adopted five years after the relinquishment.
. . ." (Id.) The D.C. Code provides that voluntary relinquishment of
parental rights "may be revoked upon the written consent of all parties
to said relinquishment. . . ." (Title 32, D.C. Code, section 1007(a))
Finally, the District's written policy provides that although the
District may accept the relinquishment of one parent, the child cannot
be adopted unless the rights of the other parent are terminated by the
court or the court waives the consent of the other parent in the
adoption proceeding. (Department of Human Services Transmittal No.
240, pp. 3-4)
Thus, it appears that the case goal for a voluntarily relinquished child
might change from adoption to return to the parents, if the parents
indicate a desire to revoke the relinquishment, or from adoption to
long-term foster care if an adoptive placement is not found after a
period of years(9) or if one of the parents does not consent to adoption
in a case where the District accepted a relinquishment by the other
parent only. Accordingly, the mere fact that a voluntarily relinquished
child is in most cases legally free for adoption, and that the District
is required to seek to place the child for adoption, does not mean that
the child's status has been determined, making a dispositional hearing
meaningless.
We also find no merit in the District's argument that its requirements
for a case plan and periodic administrative reviews in the case of
voluntarily relinquished children fulfill the purpose "inherent in the
dispositional hearing process" of expediting the movement of children
out of foster care. Section 427(a) requires not only a case plan and
administrative reviews but also dispositional hearings. It is clear
from the preceding discussion that the first two elements of the case
review system required by section 427(a) do not necessarily move
voluntarily relinquished children out of foster care. There is thus no
basis for finding that dispositional hearings, the third element of the
case review system, would serve no purpose in the case of such children.
We also reject the District's argument that an exception to the
dispositional hearing requirement for voluntarily relinquished children
is justified by analogy to the regulatory exceptions at 45 CFR 1356.21(
e). One such exception is for a child whom a court has determined should
remain permanently in foster care with a specified foster family. The
other exception is for a child who is placed in an approved home for the
purpose of adoption where the adoption has not yet been finalized. In
both cases, there is little or no question about the child's future
status: the child will remain in the home in which he or she is
currently placed. Thus, the primary purpose of a dispositional hearing
would already have been served. As discussed earlier, this is not true
of voluntarily relinquished children. Although the goal for such
children is adoption, that is not their current status, nor is their
current placement necessarily the most desirable one short of adoption.
Accordingly, we do not think that the analogy made by the District is
apt. Moreover, since the Agency had made an exception to the
dispositional hearing requirement only for two specific classes of
children, it is arguable that all other classes of children remain
subject to that requirement. Furthermore, the fact that section
1356.21(e) requires a dispositional hearing for a child in an adoptive
placement if the child is not adopted within a reasonable time clearly
indicates that a dispositional hearing is appropriate for a child who is
free for adoption but not yet in an adoptive placement.( 10)
Conclusion
For the foregoing reasons, we find that the District failed to have
procedures in fiscal year 1983 for dispositional hearings in the case of
children in foster case who were voluntarily relinquished by their
parents, as required by section 427(a) of the Act. Accordingly, we
sustain the Agency's determination that the District was ineligible for
$29,399 awarded pursuant to that section and disallowing $148,291
claimed under title IV-E for voluntary foster care maintenance payments.
/1/ Section 1101(1) of the Act defines the term "State" as
including the District of Columbia. /2/ The additional funds are
a proportional share of the amount appropriated for title IV-B which
exceeds $141,000,000. Thus, each state has an allotment for child
welfare services that is not subject to section 427(a). /3/ Pursuant to
section 4(c)(2) of Pub. L. 98-617, section 472(d) is effective only with
respect to expenditures made after September 30, 1979, and before
October 1, 1985. For other time periods, federal financial
participation in foster care maintenance payments is available only for
children placed in foster care pursuant to a judicial determination.
/4/ "Child welfare services" are defined in section 425(a)(1) as "public
social services which are directed toward the accomplishment of the
following purposes: (A) protecting and promoting the welfare of all
children, including handicapped, homeless, dependent, or neglected
children; (B) preventing or remedying, or assisting in the solution of
problems which may result in, the neglect, abuse, exploitation, or
delinquency of children; (C) preventing the unnecessary separation of
children from their families . . .; (D) restoring to their families
children who have been removed . . .; (E) placing children in suitable
adoptive homes . . .; and (F) assuring adequate care of children away
from their homes, in cases where the child cannot be returned home or
cannot be placed for adoption. /5/ Certain Agency forms sent to
the states indicated that the requirement in section 427 for a case plan
applied only to children receiving foster care maintenance payments.
(See PI-83-06, dated June 3, 1982, attached Report on State Eligibility,
State Agency Administrative Review, p. 2; ACYF-PI-83-2, dated April 8,
1983, attached State Certification of Eligibility for Additional Funds
under Section 427 of the Social Security Act, p. 2) While this reading
is not supported by the plain language of the statute, it is arguable
that a state should not now be judged by a different standard than the
Agency indicated in these documents was applicable. However, since these
documents do not contain similar language regarding the dispositional
hearing, this argument does not apply here.
JANUARY 14, 1986