SUBJECT: South Carolina Department of Social Services

DECISION

The South Carolina Department of Social Services (South Carolina) appealed in part the determination of the Administration for Children and Families (ACF) dated June 21, 2004. ACF disallowed a total of $152,516 of federal financial participation (FFP) claimed by South Carolina for foster care maintenance payments and administrative costs under title IV-E of the Social Security Act (Act). ACF's determination was based on a "subsequent primary review" of payments claimed by South Carolina for 80 sample cases during the period April 1 through September 30, 2003. The purpose of the review was to determine whether the payments were made on behalf of eligible children to eligible foster care providers. ACF found that South Carolina was not in substantial compliance with the IV-E eligibility requirements. Specifically, ACF found that 21 sample cases were "error cases" because they had ineligible payments during the review period. ACF therefore disallowed payments (including payments for periods of ineligibility outside the review period) and associated administrative costs for these cases totalling $116,841 FFP. ACF also disallowed FFP totalling $61,955 for ineligible payments made outside the review period in other sample cases which were not counted as "error cases" because ACF found no ineligible payments during the review period.

South Carolina disputes ACF's findings in 23 sample cases, sixteen of which are cases that ACF found to be error cases. The disputed cases involve findings that South Carolina failed to meet the regulatory requirements for 1) a judicial determination that reasonable efforts to prevent the child's removal from home were made (six sample cases), or 2) a judicial determination that [Page 2] reasonable efforts to finalize the child's permanency plan were made (17 sample cases). ⁽¹⁾

South Carolina also takes the position that ACF was not authorized to disallow the administrative costs associated with ineligible cases identified in a primary review. This issue was resolved in a decision addressing the consolidated appeals of four states, including South Carolina. Maryland Dept. of Human Resources et al., DAB No. 1949, dated October 28, 2004. DAB No. 1949 left for resolution in separate proceedings any other questions bearing on the allowability of the administrative costs. ⁽²⁾ South Carolina argues only that no foster care maintenance payments or administrative costs should have been disallowed for the disputed sample cases. ⁽³⁾

For the reasons discussed below, we uphold the disallowance with respect to all of the sample cases except Sample Case #66, which we find was eligible for part of the period in question.

[Page 3] IV-E Statute and Relevant Regulations

Title IV-E was originally enacted as part of the Adoption Assistance and Child Welfare Act of 1980, Public Law No. 96-272. ⁽⁴⁾ Under section 472(a) of title IV-E, as amended by the Adoption and Safe Families Act of 1997 (ASFA), Public Law No. 105-89, federal matching of state foster care maintenance payments is available for a child in foster care who would have been eligible for Aid to Families with Dependent Children under title IV-A as in effect as of June 1, 1995 -

but for his removal from the home of a relative . . . if-

(1) the removal from the home occurred pursuant to a voluntary placement agreement entered into by the child's parent or legal guardian, or 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) for a child have been made[.]

Prior to ASFA, section 471(a)(15) required that 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[.]"

ASFA redesignated section 471(a)(15)(A) and (B) as section 471(a)(15)(B)(i) and (ii). ⁽⁵⁾ Redesignated section 471(a)(15)(B) [Page 4] requires that a state plan under title IV-E must (subject to certain exceptions in subparagraph (D)) provide that "reasonable efforts shall be made to preserve and reunify families-"

(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and
(ii) to make it possible for a child to safely return to the child's home[.]

Section 471(a)(15)(D) provides that "reasonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that" the parent "has subjected the child to aggravated circumstances (as defined in State law . . .)," if the parent has committed certain crimes, or if parental rights have been terminated involuntarily with respect to a sibling of the child.

ASFA also added section 471(a)(15)(C), which requires that a State plan must provide that-

[i]f continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child[.]

Revised regulations implementing ASFA were effective March 27, 2000. 65 Fed. Reg. 4020 (Jan. 25, 2000). Section 1356.21 of 45 C.F.R. is expressly based on section 472 of the Act (see section 1356.21(a)) and states in pertinent part:

(a) Statutory and regulatory requirements of the Federal foster care program. To implement the foster care maintenance payments program provisions of the title IV-E State plan and to be eligible to receive Federal financial participation (FFP) for foster care maintenance payments under this part, a State must meet the requirements of this section . . . .
(b) Reasonable efforts. The State must make reasonable efforts to maintain the family unit and [Page5 ] prevent the unnecessary removal of a child from his/her home, as long as the child's safety is assured; to effect the safe reunification of the child and family (if temporary out-of-home placement is necessary to ensure the immediate safety of the child); and to make and finalize alternate permanency plans in a timely manner when reunification is not appropriate or possible. In order to satisfy the "reasonable efforts" requirements of section 471(a)(15) (as implemented through section 472(a)(1) of the Act), the State must meet the requirements of paragraphs (b) and (d) of this section. . . .

* * * * * *

(1) Judicial determination of reasonable efforts to prevent a child's removal from the home.
(i) When a child is removed from his/her home, the judicial determination as to whether reasonable efforts were made, or were not required to prevent the removal, . . . must be made no later than 60 days from the date the child is removed from the home pursuant to paragraph (k)(1)(ii) of this section.
(ii) If the determination concerning reasonable efforts to prevent the removal is not made as specified in paragraph (b)(1)(i) of this section, the child is not eligible under the title IV-E foster care maintenance payments program for the duration of that stay in foster care.
(2) Judicial determination of reasonable efforts to finalize a permanency plan.
(i) The State agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that is in effect . . . within twelve months of the date the child is considered to have entered foster care in accordance with the definition at � 1355.20 . . . and at least once every twelve months thereafter . . . .
(ii) If such a judicial determination regarding reasonable efforts to finalize a permanency plan is not made in accordance with the schedule prescribed in paragraph (b)(2)(i) of this section, the child becomes ineligible under title IV-E at the end of the month in which the judicial determination was required to have been made, and remains ineligible until such a determination is made.

* * * * * * *

(d) Documentation of judicial determinations. The judicial determinations regarding contrary to the welfare, reasonable efforts to prevent removal, and [Page 6] reasonable efforts to finalize the permanency plan in effect, including judicial determinations that reasonable efforts are not required, must be explicitly documented and must be made on a case-by-case basis and so stated in the court order.
(1) If the reasonable efforts and contrary to the welfare judicial determinations are not included as required in the court orders identified in paragraphs (b) and (c) of this section, a transcript of the court proceedings is the only other documentation that will be accepted to verify that these required determinations have been made.

(Emphasis added.) Section 1356.21(k)(1)(ii), which is cross-referenced in section 1356.21(b)(1)(i), states:

(k) Removal from the home of a specified relative.
(1) For the purposes of meeting the requirements of section 472(a)(1) of the Act, a removal from the home must occur pursuant to:
(i) A voluntary placement agreement entered into by a parent or guardian which leads to a physical or constructive removal (i.e., a non-physical or paper removal of custody) of the child from the home; or
(ii) A judicial order for a physical or constructive removal of the child from a parent or specified relative.

Section 1355.20, which is cross-referenced in section 1356.21(b)(2)(i), states:

Date a child is considered to have entered foster care means the earlier of: The date of the first judicial finding that the child has been subjected to child abuse or neglect; or, the date that is 60 calendar days after the date on which the child is removed from the home pursuant to � 1356.21(k).

Pursuant to 45 C.F.R. � 1356.71, ACF conducts primary reviews every three years based on a randomly drawn sample of 80 cases. ACF reviews these cases to determine whether title IV-E payments were made (1) on behalf of eligible children and (2) to eligible foster family homes and child care institutions. If a state's ineligible cases in the sample do not exceed eight in the "initial primary review," or four in a "subsequent primary review," a state's program is deemed in "substantial compliance," and the state is not subject to another primary review for three years. However, a disallowance is assessed for payments and
[Page 7] administrative costs associated with the individual error cases in the sample "for the period of time the cases are ineligible." 45 C.F.R. � 1356.71(c)(4). If a state's program is deemed not in substantial compliance, a program improvement plan is required, and the state is thereafter subject to a secondary review of 150 randomly drawn cases, which may result in a disallowance that is based on an extrapolation from the sample to the universe of claims paid.

The Title IV-E Foster Care Eligibility On-Site Review Instrument and Instructions (Review Instrument) ⁽⁶⁾ provides special instructions for sample cases in which the child entered foster care prior to March 27, 2000 (the effective date of the regulations implementing ASFA). In such cases, "[t]he judicial determination that reasonable efforts were made to prevent removal OR that reasonable efforts were made to reunify the child and family" satisfies the requirement for a judicial determination that reasonable efforts to prevent removal were made. See instructions for question 13. ⁽⁷⁾ Further, in such cases, ACF does not make a finding regarding whether there was a judicial determination that reasonable efforts were made to finalize the child's permanency plan within 12 months from the date the child entered foster care. Instead, ACF looks only to whether a case meets this requirement after March 27, 2001. See instructions for question 17. ⁽⁸⁾

[Page 8] South Carolina advances two principal grounds for its appeal. First, South Carolina disputes ACF's determination that 23 of the sample cases had ineligible payments because they lacked the requisite judicial determination. According to South Carolina, ACF's determination was erroneously predicated on the view that the requirement for a judicial determination may be satisfied only by specific language in the court order. South Carolina argues that, in each disputed case, either there was language in the court order which constituted a reasonable efforts determination or it could be inferred from the court order that the court had made a reasonable efforts determination. Second, South Carolina argues that the Board should reverse the disallowance for those sample cases that ACF found did not meet the requirements for a judicial determination of reasonable efforts to finalize the child's permanency plan on the basis that section 1356.21(b)(2) conflicts with the IV-E statute and, therefore, is not an applicable regulation by which the Board is bound. We address each of these arguments separately below.

I. ACF properly found that all of the disputed sample cases had ineligible payments, although some of the payments disallowed for one sample case were eligible.

South Carolina concedes that most of the disputed sample cases lack a court order expressly stating that reasonable efforts of the type required have been made. South Carolina argues, however, that no specific wording is required for a reasonable efforts determination, citing a statement in the preamble to the final regulations issued in 2000 that a reasonable efforts determination did not need "to use the exact terminology of the statute." SC Br. at 3, citing 65 Fed. Reg. 4020, 4056. South Carolina also points to a statement in that preamble approving the "suggestion that the court order reference the facts of a court report, related psychiatric or psycho-social report, or sustained petition as a mechanism for demonstrating that judicial determinations are made on a case-by-case basis." Id., citing 65 Fed. Reg. 4020, 4056. Thus, according to South Carolina, ACF should have accepted as a reasonable efforts determination language in its court orders that does not track the language of the statute. Alternatively, South Carolina argues that ACF should simply have inferred from the circumstances under which the orders were issued that the court made a reasonable efforts determination. In South Carolina's view, ACF's unwillingness to do so was contrary to both the intent stated in the preamble that "States have a great deal of flexibility in satisfying this requirement" and congressional intent that judicial [Page 9] determinations not be "'a mere pro forma exercise in paper shuffling to obtain Federal funding.'" Id. (quoting S. Rep. No. 336, 96^th Cong. 2d Sess. 16 (1980)).

We agree with South Carolina that statements regarding reasonable efforts that do not track the language of the statute might be acceptable. (Nevertheless, as we discuss later, South Carolina submitted only one order which contains language that is acceptable as a reasonable efforts determination.) However, the preambles to the proposed and final regulations provide no support for South Carolina's position that a reasonable efforts determination can be inferred from a court order. The preamble to the notice of proposed rulemaking explained that ACF would no longer accept certain forms of documentation as evidence that the required judicial determinations were made. In particular, ACF stated that it would not accept affidavits and nunc pro tunc orders, which were created months or years after the fact, stating that they cannot be considered as reliable evidence of prior compliance with federal requirements given the large number of cases that go before the courts. ⁽⁹⁾ ACF also stated that it would not accept a reference in a court order to a state law since this does not ensure that the circumstances of each child are reviewed individually. ACF stated that instead-

[c]onsistent with language in section 472(a)(1) of the Act, in paragraph (d)(1) we propose that the judicial determinations regarding 'contrary to the welfare' and 'reasonable efforts' be stated specifically in the court orders identified in �1356.21, paragraphs (b) and (c)[,] and must include the evidentiary basis for that determination. The judicial determinations themselves need not necessarily include the exact terms 'contrary to the welfare' and 'reasonable efforts', but must convey that the court has determined that reasonable efforts have been made or are/were not required (as described in section 471(a)(15) of the Act), and that it would be contrary to the welfare of a child to remain at home. A transcript of the court proceedings which verifies that the court considered the facts of the case and made a finding with respect to the reasonable efforts and contrary to the welfare requirements is the only other form of documentation that will be accepted.

[Page 10] 63 Fed. Reg. 50,058, 50,075 (Sept. 18, 1998). The preamble to the final rule stated that no changes had been made in proposed section 1356.71(d), which it described as "requiring judicial determinations to be explicit, made on a case-by-case basis, and so stated in the court order." 65 Fed. Reg. 4020, 4055. The preamble nevertheless clarified the policy of requiring "individualized judicial determinations" as follows:

Our purpose for proposing this policy can be found in the legislative history of the Federal foster care program. The Senate report on the bill characterized the required judicial determinations as "* * * important safeguard(s) against inappropriate agency action * * *" and made clear that such requirements were not to become "* * * a mere pro forma exercise in paper shuffling to obtain Federal funding * * *" (S. Rept. No. 336, 95^th Cong., 2d Sess. 16 (1980)). We concluded, based on our review of State[s'] documentation of judicial determinations over the past years, that, in many instances, these important safeguards had become precisely what Congress was concerned that they not become.
Our primary concern is that judicial determinations be made on a case-by-case basis and it was not our intent to create a policy that was overly prescriptive and burdensome. States have a great deal of flexibility in satisfying this requirement. The suggestion that the court order reference the facts of a court report, related psychiatric or psycho-social report, or sustained petition as a mechanism for demonstrating that judicial determinations are made on a case-by-case basis is an excellent one and would satisfy this requirement. If the State can demonstrate that such determinations are made on a case-by-case basis through a checklist[,] then that is acceptable also.

Id. at 4056. The preamble also responded as follows to a commenter who "was opposed to our requiring specific judicial determinations" and "felt we should be able to cull out the fact that the court made the appropriate determinations by reading the hearing record":

While we can allow some flexibility in this area, it is a statutory requirement that the specific judicial determinations regarding reasonable efforts and contrary to the welfare be explicit in court orders. Section 1356.21(d)(1) of the regulation states that we will accept transcripts of the court proceedings if the [Page 11] necessary judicial determinations are not explicit in the court orders.

Id.

It is clear from the foregoing that the regulations impose on South Carolina a burden to explicitly document for each sample case that a court made the requisite reasonable efforts determination on an individualized, case-by-case basis. While no specific terminology is required, the use of the term "explicit" in the regulation means that it is not sufficient if the order (or transcript) merely implies that reasonable efforts were made. Instead, there must be an express statement on the face of the court order which, in the context of the order as a whole, can reasonably be understood as a determination that the required type of reasonable efforts has been made, or were not required. ⁽¹⁰⁾ In the absence of such a statement, we cannot find that South Carolina met its burden, regardless of whether we would find that the State agency made reasonable efforts of the type required or whether the court in fact determined that those efforts were reasonable. In the absence of such an express statement on the face of the court order, a court transcript verifying that the court considered the facts and made a finding with respect to reasonable efforts "is the only other form of documentation that will be accepted." 63 Fed. Reg. 50,058, 50,075. As we indicated above, the Secretary rejected the notion that ACF should be required to read the hearing record and "cull out" the fact that the court made the requisite determination.

Contrary to what South Carolina argues, the preamble does not state that a reference in a court order to "the facts of a court report, related psychiatric or psycho-social report, or sustained petition" would, by itself, satisfy the requirement for a reasonable efforts determination. The quoted language addresses the separate requirement in the regulation that the reasonable efforts determination be made "on a case-by-case basis." In [Page 12] conjunction with an express statement evidencing that the court has made a reasonable efforts determination, the reference in a court order to the facts in a report or petition in a particular case shows that the determination was made on a case-by-case basis. Similarly, the statement in the preamble that "States have a great deal of flexibility in satisfying this requirement" refers to the requirement that the reasonable efforts determination be made on a case-by-case basis and does not have the significance attributed to it by South Carolina.

We also find no merit in South Carolina's argument that ACF applied the regulations in a way that violated congressional intent to require courts to engage in more than "a mere pro forma exercise in paper shuffling to obtain federal funding . . . ." ACF found the sample cases at issue here ineligible because they did not comply with the clear requirement in the regulations for an explicit reasonable efforts determination that was made on an individualized basis. As ACF noted in the preamble to the final regulations, it was the absence of such documentation that led to Congress' continued concern that courts were simply engaging in paper shuffling. Thus, ACF's requiring the documentation called for by the regulations is consistent with congressional intent.

South Carolina also takes the position that it would be "a redundancy" for the court to expressly state in an order approving a child's permanency plan that reasonable efforts were made to finalize the permanency plan. SC Br. at 4. South Carolina argues in effect that it ineluctably follows from the court's approval of a child's permanency plan that the court has made a reasonable efforts determination. However, in approving the objective of a child's permanency plan, i.e., reunification, adoption, etc., the court is not making a determination that any efforts that have been made to accomplish that objective were reasonable. A court that approves the objective of a child's permanency plan does so on a prospective basis, while any reasonable efforts determination that was made in the same order would necessarily look at what efforts have already been made to accomplish the objective of the plan that was previously approved. Moreover, a court could approve the continuation of a child's permanency plan as the most appropriate plan for the child even if it determined that reasonable efforts had not been made to finalize the plan. A court might not even have been aware of what efforts, if any, had been made to finalize the plan.

South Carolina also alleges that the disallowance is unreasonable because it penalizes the State agency due to omissions by the judiciary. This was not an unintended consequence of the [Page 13] statutory or regulatory scheme, however. The Senate report refers specifically to the "responsibility" for the protection of children "placed upon" "the judiciaries of the States" "by Federal statute." Sen. Rep. No. 336, 96th Cong., 1st Sess. 16 (1979). Thus, Congress clearly understood when it originally enacted title IV-E that a state could comply with the requirement for a judicial determination of reasonable efforts only if it obtained the cooperation of courts in the state. Moreover, while the preamble to the final regulations indicates that the Department sought to minimize the "burden" that the revised regulations would place "on the courts and State agencies," this recognizes that such a burden was inherent in the statutory requirements. See 65 Fed. Reg. 4020, 4053.

Below, we discuss the individual sample cases in dispute. We address first the sample cases that ACF determined did not meet the requirements for a judicial determination of reasonable efforts to finalize a permanency plan and then the sample cases that ACF determined did not meet the requirements for judicial determination of reasonable efforts to prevent a child's removal from home.

Sample cases that ACF determined did not meet the requirements in 45 C.F.R. � 1356.21(b)(2) for a judicial determination of reasonable efforts to finalize the permanency plan

Sample Case #6 - J.T. ⁽¹¹⁾

J.T. entered foster care in 1992. South Carolina Att. D, last page. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize J.T.'s permanency plan was due by March 27, 2001. ACF disallowed a total of $6,657 FFP for the period April 1, 2001 through June 1, 2003. ACF Att. 4, at 10. ⁽¹²⁾

[Page 14] To show that the case was eligible for IV-E payments during that period, South Carolina relies on three court orders, dated July 27, 2000, April 26, 2001, and October 25, 2001, issued following hearings on the child's permanency plan. SC Atts. D, F, G. None of the orders contains a statement that documents that the court made a reasonable efforts determination.

The caption on each order indicates that parental rights have been terminated. Each order states that the Department of Social Services (DSS) informed the court that an agreement had been reached on the recommendations for a treatment plan, under the terms of which DSS was to retain custody of J.T. The first order identifies J.T.'s permanency plan as adoption and the second and third orders identify the permanency plan as permanent foster care.

South Carolina argues that the report of the Foster Care Review Board, which South Carolina says was required by State law to be submitted to the court in connection with a permanency planning hearing, "shows that DSS made the following efforts to finalize J.T.'s plan of adoption - efforts to recruit an adoptive home using two differen[t] sources, one inside DSS and an outside agency . . . as well as referrals to therapy to stabilize J.T.'s behavior." SC Br. at 9, citing SC Att. D, 11^th page. According to South Carolina, "there can be no clearer example of using reasonable efforts to finalize a plan of adoption than to try to find a potential adoptive home." SC Br. at 9. South Carolina argues that, in light of this report, the court "inherently" made a reasonable efforts determination in the July 27, 2000 order "when it approved the plan that allowed J.T. to remain in DSS custody." Id. South Carolina's reliance on the Foster Care Review Board report is misplaced since neither the July 27, 2000 order, which was issued before the date on the report, nor the other two orders, refer to this report. In any event, such a reference would not be sufficient to establish that the court determined that the efforts set out in the report constituted reasonable efforts.

South Carolina also maintains that the court made a reasonable efforts determination in each of the other two orders. According to South Carolina: "In filing the necessary pleadings for both the April and October 2001 PP hearings to keep J.T. in its custody, DSS made the reasonable efforts to finalize the plan, which was permanent foster care. The judge, in signing off on the orders, therefore made a determination that DSS made reasonable efforts, though again not using those exact words." SC Br. at 10. However, the mere fact that the orders approved J.T.'s permanency plan is not a sufficient basis for finding that [Page 15] the court made a reasonable efforts determination. The court's approval of the objective of a child's permanency plan does not equate to a determination that the efforts made to accomplish that objective were reasonable.

South Carolina also asserts that ACF approved an October 17, 2002 order in this sample case as meeting the requirement for a reasonable efforts determination based on the "apparent analysis" that the word "reasonable" appears somewhere in the order. SC Br. at 10, citing SC Att. H. South Carolina takes the position that, "[i]f that is the case, then several other orders in this sample should pass . . . ." SC Br. at 10. It is unlikely that ACF found that the October 17, 2002 order contained a reasonable efforts determination since ACF disallowed FFP claimed for this sample case through June 1, 2003. Moreover, we see no basis for such a finding since one of the items on that checklist-style order states in part that "DSS has made reasonable efforts to finalize the Permanent Plan for the child(ren)" but this item is not checked. In any event, none of the three orders submitted by South Carolina contains similar language.

Accordingly, we conclude that this case was an error case and was ineligible for the entire period in question.

Sample Case #16 (A.O.)

A.O. entered foster care in 1990. SC Att. K, 6^th page. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize A.O.'s permanency plan was due by March 27, 2001. ACF disallowed a total of $6,215 FFP for this case for the period April 1, 2002 through September 30, 2003. ACF Att. 4, at 16. ⁽¹³⁾ ACF also disallowed $2,009 FFP for this case for the period October 1, 2003 through March 31, 2004 (following the review period). ACF Att. 5, at 23.

To show that this case was eligible, South Carolina submitted permanency planning orders dated October 9, 2000, May 23, 2002, [Page 16] September 11, 2003, and January 20, 2004. SC Atts. K - N. ⁽¹⁴⁾ The September 20, 2000 order is irrelevant since, even if it contained a reasonable efforts determination, another determination would have been due by the beginning of the disallowance period on April 1, 2002. The next order is dated May 23, 2002. Thus, the case was clearly ineligible for the month of April 2002. Moreover, none of the other orders contains a statement that documents that the court made a reasonable efforts determination.

South Carolina argues that the court made a reasonable efforts determination in the May 23, 2002 order when it stated "that the services offered by [DSS] are reasonable in light of the circumstances." SC Br. at 13, quoting SC Att. L. In its entirety, the sentence quoted reads: "I further find that the services offered by the Charleston County Department of Social Services are reasonable in light of the circumstances, and that reasonable efforts have been made by the Charleston County Department of Social Services to restore this family." SC Att. L at 2-3. However, the first clause of the quoted sentence does not satisfy the requirement for an individualized reasonable efforts determination since there is no indication in the order what "services" this clause refers to. In addition, the reasonable efforts "to restore this family" referred to in the second clause are clearly not reasonable efforts to finalize A.O.'s permanency plan since parental rights had been terminated on March 10, 1999 and A.O.'s permanency plan, which the order states is permanent foster care, had been in place since at least October 5, 2000, when the foster parents signed a permanent foster care agreement. SC Att. M, 7^th page.

South Carolina further argues that the court made a reasonable efforts determination in the September 11, 2003 order because this order identifies A.O.'s permanency plan as permanent foster care and refers to a summary prepared by DSS for the court prior to the hearing that "states that A.O. is in a therapeutic foster [Page 17] care placement and doing well." SC Br. at 14. South Carolina continues: "There can be no other 'effort' - reasonable or otherwise - to finalize A.O.'s plan than this; she is doing well in foster care, which was her plan." Id. (The DSS summary indicates that A.O. was still placed with the foster care parents who signed the permanent foster care agreement in 2000. SC Att. M, 7^th page.) South Carolina's reliance on the DSS summary is unwarranted, however. Even if the summary's observation that A.O. was doing well in her placement somehow reflected efforts to finalize the child's permanency plan, the mere reference to a document describing efforts to finalize a permanency plan is not sufficient to meet the requirement to explicitly document that the court made a reasonable efforts determination. The order also contains the statement that "[t]his summary outlines the facts in this case and the services offered to this family by the Department." SC Att. M, 1^st page. However, there is no indication in this language that the court found that the services offered constituted reasonable efforts to finalize A.O.'s permanency plan.

We note that South Carolina does not argue that the statute does not require a reasonable efforts determination once a child is placed in permanent foster care, where (as here) that was the child's permanency plan. Instead, South Carolina simply contends that such a determination was made in the September 11, 2003 order (as well as in the orders discussed below). In any event, it seems reasonable to read the statute to require continuing reasonable efforts determinations for children in permanent foster care. The requirement that a state obtain a periodic judicial determination of reasonable efforts to finalize a permanency plan applies "while the child is in foster care." 45 C.F.R. � 1356.21(a)(2)(i). Requiring the continuation of such efforts, and a judicial determination that such efforts have been made, for a child whose permanency plan of permanent foster care has been implemented is consistent with the requirement that courts continue to hold periodic permanency hearings for such a child. Under ASFA, periodic permanency hearings are required where the state has established "a permanency plan that does not call for the child to exit foster care through reunification, adoption, legal guardianship, or placement with a fit and willing relative." See 65 Fed. Reg. 4020, 4058.

Finally, South Carolina argues that the January 20, 2004 order met the requirement for a reasonable efforts determination, relying on a statement identical to that in the May 23, 2002 order. As discussed above, this language does not satisfy these requirements. South Carolina notes in addition that the summary prepared by DSS prior to the hearing recommends that A.O.'s [Page 18] permanency plan be permanent foster care and "sets out the efforts DSS is making - maintaining A.O. in her current placement [with the foster care parents who signed the permanent foster care agreement in 2000] and making referrals to appropriate services so that the placement can succeed." SC Br. at 14, citing SC Att. N. The order approves a permanency plan of permanent foster care and refers to the DSS summary. SC Att. N at 1-2. However, the order's reference to a document describing efforts to finalize a permanency plan is not sufficient to meet the requirement to explicitly document that the court made a reasonable efforts determination.

Accordingly, we conclude that this case was an error case and was ineligible for the entire period in question.

Sample Case #21 (M.G.) ⁽¹⁵⁾

M.G. entered foster care in 1997. SC Att. S, 12^th page. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize M.G.'s permanency plan was due by March 27, 2001. ACF disallowed a total of $8,421 FFP for this child for the period April 1, 2001 through June 30, 2003. ACF Att. 4, at 3. ⁽¹⁶⁾

To show that this case was eligible, South Carolina submitted three court orders, dated November 1, 2001, April 11, 2002, and October 31, 2002, issued following permanency plan hearings. SC Atts. S - U. None of the orders contains a statement that documents that the court made a reasonable efforts determination.

South Carolina asserts that the orders identify the child's permanency plan as adoption (although the April 11 order does not in fact identify a permanency plan), and that a DSS report filed in the month before each hearing--

[Page 19] contains a recitation of DSS' efforts to finalize this plan . . . . Each [report] states that M.G. was being stabilized in a therapeutic foster home, attending therapy, and doing well in school - efforts that had to be made to enable M.G. to be placed for adoption. In signing these orders, each judge thus made a 'judicial determination' that the agency's efforts were reasonable; otherwise, he would not have signed the order.

SC Br. at 18. None of the orders refer to a DSS report. In any event, the reference to such a report would not be sufficient to meet the requirement to explicitly document that the court made a reasonable efforts determination.

Accordingly, we conclude that this sample case was an error case and was ineligible for the entire period in question.

Sample Case #19 (N.F.)
Sample Case #31 (C.F.)

N.F. and C.F. were siblings who entered foster care in 1989. SC Att. O, at 2. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize each child's permanency plan was due by March 27, 2001. ACF disallowed a total of $9,679 FFP for N.F. and $8,955 FFP for C.F. for the period April 1, 2001 through September 30, 2003. ACF Att. 4, at 17-18. In addition, ACF disallowed a total of $1,891 FFP for N.F. and $1,891 FFP for C.F. for the period October 1, 2003 through March 31, 2004. ACF Att. 5, at 24-25. ⁽¹⁷⁾

To show that these cases were eligible, South Carolina submitted orders for permanency planning dated April 1, 2001, April 1, 2002, and August 18, 2003. SC Att. O-Q. None of the orders contains a statement that documents that the court made a reasonable efforts determination.

South Carolina takes the position that the court made a reasonable efforts determination when it stated in the April 1, 2001 order that "[t]he supplemental report/treatment plan is fair, reasonable and equitable, and is in the best interest of the minor children, and it is approved without reservation." SC [Page 20] Br. at 15, quoting SC Att. O at 2. South Carolina asserts that since the supplemental report "sets out what DSS did (i.e., the 'efforts')," the court necessarily concluded that DSS made reasonable efforts to finalize the children's permanency plans, which the order identifies as permanent foster care. SC Br. at 15. The statement on which South Carolina relies, however, describes the supplemental report rather than any services actually provided by DSS. ⁽¹⁸⁾

South Carolina also takes the position that the court made a reasonable efforts determination when it stated in the April 1, 2002 order that "[t]he permanent plan of the Department of Social Services/Managed Treatment Services-Lexington as proposed in the attached supplemental report is fair, reasonable, equitable, and is in the best interest of the minor children and should be adopted as the Order of the Court." SC Br. at 16, quoting SC Att. P, at 2. This order identifies the children's permanency plan as permanent foster care. South Carolina asserts that "the report shows the reasonable efforts DSS made to finalize the plan," and that "[b]y approving the report and finding it reasonable," the court made a reasonable efforts determination. SC Br. at 16. On its face, however, the language in the court order quoted by South Carolina merely approves the permanency plan. A court's approval of a child's permanency plan is not a sufficient basis for finding that the court determined that reasonable efforts had been made to accomplish the objective of that plan. ⁽¹⁹⁾

[Page 21] South Carolina also takes the position that the court made a reasonable efforts determination in the August 18, 2003 order "[b]y finding that the implementation of the plan was appropriate and also ordering that DSS had presented compelling reasons for this plan. . . ." SC Br. at 16. South Carolina appears to be referring to statements in the order that it is "in the children's best interest to implement the permanent plan described in the supplemental report" and that DSS "presented compelling reasons for the setting" of this plan. SC Att. Q at 2-3. The supplemental report identifies the plan as "Permanent Foster Care." Id., 5^th page. The statement in the order on which South Carolina relies merely approves the permanency plan, however. As just noted, the fact that the court approves a child's permanency plan is not a sufficient basis for finding that the court made a reasonable efforts determination. It is unclear what other language in the order South Carolina relies on; however, we can find no express statement of a reasonable efforts determination.

Accordingly, we conclude that these two sample cases were error cases and were ineligible for the entire period in question.

Sample Case #22 (S.C.)

The record does not show when S.C. entered foster care; however, her date of birth was September 4, 2001. SC Atts. V and W, 1^st page. Thus, a reasonable efforts determination was due within the next 60 calendar days or on the date of any judicial determination of abuse or neglect if earlier. ACF disallowed a total of $3,437 FFP for the period October 1, 2002 through September 30, 2003. ACF Att. 4, at 5. In addition, ACF disallowed a total of $1,729 FFP for the period October 1, 2003 through March 31, 2004. ACF Att. 5, at 15.

To show that the case is eligible, South Carolina submitted court orders dated December 12, 2002 and June 20, 2003. SC Atts. V and W. It is not clear whether, if the December 12, 2002 order contained a reasonable efforts determination, that determination would have been timely. In any event, neither of the orders contains a statement that documents that the court made a reasonable efforts determination.

[Page 22] The December 12, 2002 order states that DSS "intends to pursue a dual track in this case where it will continue to offer services to the Defendants while also working toward the termination of their parental rights in the event they fail to rehabilitate." The order further states that DSS had recommended that the parents "comply with treatment objectives including out-patient substance abuse treatment, random drug screens, domestic violence counseling and parenting classes." SC Att. V at 2. South Carolina takes the position that the court made a reasonable efforts determination when it set out the services DSS "had made . . . to achieve" S.C.'s permanency plan of reunification with her mother and "approved the services outlined." SC Br. at 19. ⁽²⁰⁾ According to South Carolina, "[i]t strains the imagination to come to any other conclusion but that these services (i.e. efforts made by DSS . . . were anything other than reasonable . . . ." Id. South Carolina's argument suggests that the court's approval of DSS's continuing to provide the same services to the parents that it had provided in the past would constitute a reasonable efforts determination. This case does not raise that issue, however, since the court merely ordered that DSS "continue to provide services" to the parents and did not specify that DSS was to continue providing the same services or state that the court was approving the services outlined. SC Att. V at 3. Moreover, the issue before us is not whether the efforts made by DSS were reasonable, but whether the requirements for documenting a judicial determination to that effect were met.

The June 20, 2003 order states that S.C.'s mother had failed to attend drug counseling and tested positive for drugs, while S.C.'s father, who had been released from prison in January, had been re-arrested and was being held at a correctional facility. The order states that DSS "shall be relieved of providing services" to the parents and approves a permanency plan of TPR and adoption. SC Att. W at 3. South Carolina argues that the court's conclusion that DSS no longer had to provide services "reflects the court's rationale that DSS' decision to forego reunification was reasonable." SC Br. at 20. South Carolina continues: "The judicial determination of reasonable efforts to finalize the changed plan would come in a subsequent order." Id. [Page 23] South Carolina appears to take the position that the fact that S.C.'s permanency plan was changed, and approved by the court, obviated the need for the court to determine whether DSS had made reasonable efforts to finalize the existing plan of reunification. This position is not supported by the preamble to the final rule. The preamble states in relevant part that "[i]n determining whether the State made reasonable efforts to finalize a permanency plan, the court's determination should be based on the permanency plan that is in effect at the time that the agency is seeking such a determination." 65 Fed. Reg. 4020, 4052. ⁽²¹⁾ Since the permanency plan in effect at the time in question here was reunification, the court was required to make a determination that reasonable efforts to finalize that plan had been made.

Accordingly, we conclude that this case was an error case and was ineligible for the entire period in question.

Sample Case #59 (S.L.T., a/k/a L.T.)

L.T. entered foster care on March 24, 2000. SC Att. Y, 7^th page. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize L.T.'s permanency plan was due by March 27, 2001. ACF disallowed a total of $4,147 FFP for the period July 1, 2002 through September 30, 2003. ACF Att. 4, at 14. In addition, ACF disallowed a total of $2,037 FFP for the period October 1, 2003 through March 31, 2004. SC Att. 5, at 21. ⁽²²⁾

[Page 24] To show that the case is eligible, South Carolina submitted court orders dated January 9, 2003 and January 8, 2004. SC Atts. AA and Y. At most, these orders could establish L.T.'s eligibility for part of the period in question. Neither order, however, contains a statement that documents that the court made a reasonable efforts determination.

The January 9, 2003 order directs that the permanency plan for L.T. "be amended to be permanent foster care." SC Att. AA at 2. The "Placement/Treatment Plan" submitted by South Carolina states that L.T.'s "plan is currently independent living" but "will be amended at the next court hearing to reflect permanent foster care until he reaches age 16." SC Att. AA, 4^th page. South Carolina takes the position that the January 9 order contains a reasonable efforts determination because the order "states that the court reviewed the file, which contained the accompanying placement/treatment plan [in which] DSS sets out the steps it will take (i.e., its efforts) to achieve this permanent plan for L.T." South Carolina continues: "In approving the plan by signing the order, the court inherently found that DSS' efforts were reasonable . . . ." SC Br. at 23. However, the court's reference to a document that describes what efforts DSS "will take" in the future is insufficient to establish that the court determined that reasonable efforts had been made to finalize the plan in effect at the time of the court order.

The January 8, 2004 order indicates that L.T.'s permanency plan had been permanent foster care but needs to be changed to independent living since L.T. is now sixteen. SC Att. Y at 4, 6, and 7. South Carolina takes the position that this order contains a reasonable efforts determination, citing the statements in the order that DSS "has made reasonable efforts to reunite the family" and that DSS "may terminate reasonable efforts pursuant to 20-7-763." SC Br. at 23. Since L.T.'s permanency plan had been permanent foster care, however, the court's finding that reasonable efforts were made to reunite the family is not an individualized determination that reasonable efforts were made to finalize the permanency plan for this child.

Accordingly, we conclude that this sample case was an error case and was ineligible for the entire period in question.

Sample Case #58 (A.G.)

The record shows that A.G. was born on April 27, 1991 but does not show when A.G. was removed from home. SC Att. BB, at 1. ACF apparently found that a reasonable efforts determination was due by April 2003. ACF disallowed a total of $2,082 FFP for the
[Page 25] period April 1, 2003 through September 30, 2003. ACF Att. 4, at 22. In addition, ACF disallowed a total of $2,037 FFP for the period October 1, 2003 through March 31, 2004. SC Att. 5, at 21. ⁽²³⁾

To show that the case is eligible, South Carolina submitted a court order dated May 12, 2003. SC Att. BB. The order shows that A.G.'s permanency plan had been TPR/adoption and was being changed to relative placement, and that there was a pending TPR action against the mother. South Carolina takes the position that "[t]here can be no clearer example of DSS making a reasonable effort to finalize a permanent plan of TPR than DSS bringing a TPR action," and that it was therefore unnecessary for the court to "stat[e] the obvious." SC Br. at 24. The mere fact that the court was aware that DSS had initiated a TPR action does not mean that the court determined that reasonable efforts had been made to finalize A.G.'s permanency plan of adoption or relative placement (or even that reasonable efforts had been made to terminate parental rights since the TPR action was only in pending status). Under South Carolina's reasoning, we would have to infer that a reasonable efforts determination had been made even if, because of state agency inaction, TPR was delayed for years and no other steps were taken toward the child's permanency plan.

Accordingly, we conclude that this case was an error case and was ineligible for the entire period in question.

Sample Case #68 (A.M.)

A.M. was removed from home on July 10, 2002 based on a request by DSS alleging domestic violence between the parents. SC Att. CC at 8^th page. Thus, a reasonable efforts determination was due by August 9, 2003 or on the date of any judicial determination of abuse and neglect, if earlier. See 45 C.F.R. �� 1356.21(a)(2)(ii) and 1355.20. ACF disallowed a total of $573 FFP for the period August 1, 2003 through September 30, 2003. ACF Att. 4, at 9. In addition, ACF disallowed a total of $1,823 FFP for the period October 1, 2003 through March 31, 2004. ACF Att. 5, at 18.

[Page 26] To show that the case was eligible, South Carolina submitted a court order dated April 7, 2003. SC Att. CC. The permanency planning summary prepared prior to the hearing that resulted in the order identifies A.M.'s permanency plan as reunification and lists "Services Offered." Id. South Carolina argues that the "inescapable conclusion" is that these services were reasonable and that the court "concluded that DSS' efforts were reasonable (though not in those exact words) by approving the [permanency] plan for A.M." and was not required to "state the obvious." SC Br. at 25. However, a court's approval of a child's permanency plan is not a sufficient basis for finding that the court determined that reasonable efforts had been made to accomplish the objective of that plan.

Accordingly, we conclude that this sample case was an error case and was ineligible for the entire period in question.

Sample Case #73 (N.P.)

N.P. "ha[d] been in foster care since February 17, 2001." SC Att. EE at 5. Assuming this was also the date of removal, a reasonable efforts determination was due within the next 60 calendar days or on the date of any judicial determination of abuse or neglect, if earlier. ACF disallowed a total of $305 FFP for the period September 1 - 30, 2003. ACF Att. 4, at 4. In addition, ACF disallowed a total of $1,842 FFP for the period October 1, 2003 through March 31, 2004. ACF Att. 5, at 14. ⁽²⁴⁾

To show that the case was eligible, South Carolina submitted court orders dated August 26, 2002, March 3, 2003, and September 21, 2003. SC Atts. DD - FF. The August 26, 2002 order is not relevant since, even if it contains a reasonable efforts determination, another reasonable efforts determination would have been required by September 2003 in order for the case to be

IV-E eligible at the beginning of the period covered by the disallowance. Neither of the other orders contains a statement documenting that the court made a reasonable efforts determination.

The March 3, 2003 order is a final order terminating parental rights. The record shows that the permanency plan for N.P. was [Page 27] TPR/adoption. SC Att. DD at 3. South Carolina argues that "[b]ringing and successfully completing a TPR action on a child whose plan is TPR is a reasonable effort to finalize the plan" and that it "defies rational thought to interpret ASFA to require that the actual TPR order must contain a finding that the court found that the fact of bringing the action is a reasonable effort to achieve the order itself." SC Br. at 26 (emphasis in original). The mere fact that TPR was one of the necessary steps toward finalizing N.P.'s permanency plan of TPR/adoption, however, does not mean that the court upon terminating parental rights also determined that reasonable efforts were made to finalize the plan of placing N.P. with adoptive parents.

The September 21, 2003 order changes N.P.'s permanency plan from TPR/adoption to permanent foster care and independent living and directs that N.P.'s father inform DSS when he finds employment (so that his child support obligation can be calculated) and that there be a home study on his home (since he was allowed to have visitation with N.P.). South Carolina argues that "the order thus reflects the reasonable efforts that DSS will have to make in the future to finalize this new plan . . . ." SC Br. at 27. However, a reasonable efforts determination must address the state agency's efforts to finalize the permanency plan that "is in effect at the time that the agency is seeking such a determination." 65 Fed. Reg. 4020, 4052. Thus, the court's approval of efforts to be made in the future to finalize a new permanency plan is irrelevant.

Accordingly, we conclude that this case was an error case and was ineligible for the entire period in question.

Sample Case #80 (M.M.)

M.M. was placed in foster care on April 25, 2001, apparently due to threat of harm from domestic violence and alcohol abuse by her birth parents. SC Att. KK at 1^st and 3^rd pages. Thus, a reasonable efforts determination was due within the next 60 calendar days or on the date of any judicial determination of abuse or neglect if earlier. See 45 C.F.R. �� 1356.21(a)(2)(ii) and 1355.20. ACF disallowed a total of $3,151 FFP for the period November 1, 2002 through September 30, 2003. ACF Att. 4, at 13. In addition, ACF disallowed a total of $288 FFP for the period October 1 - 31, 2003. ACF Att. 5, at 20.

To show that the case was eligible, South Carolina submitted court orders dated November 1, 2001, June 12, 2002, and April 2, 2004. SC Atts. GG, HH, and II. The April 2, 2004 order is not relevant since it is after the period covered by the [Page 28] disallowance. Neither of the other orders contains a statement documenting that the court made a reasonable efforts determination.

The November 1, 2001 order resulted from a hearing on a motion by DSS to change M.M.'s permanency plan from reunification to TPR. South Carolina does not explain why it thinks this order contains a reasonable efforts determination. ⁽²⁵⁾ We assume that South Carolina is relying on the following language in the order:

SCDSS is authorized to terminate or forego reasonable efforts to preserve the family or to reunite the child with defendants pursuant to S.C. Code . . . . . The parents admit that they have failed to remedy the situation and do not at this time have a safe stable home for the minor child.

SC Att. GG at 2. However, a reasonable efforts determination must address the state agency's efforts to finalize the permanency plan that "is in effect at the time that the agency is seeking such a determination." 65 Fed. Reg. 4020, 4052. This order says nothing about whether DSS had made reasonable efforts to finalize the plan of reunification that was in effect until the court changed the plan.

The June 12, 2002 order is a final order terminating the father's parental rights after he was charged with the mother's murder. South Carolina takes the position that "the act of bringing the TPR action is a reasonable effort to finalize a permanent plan of TPR/adoption" and that "[i]n approving and signing off on the TPR order, the judge has, by inference, made a judicial determination of reasonable efforts to finalize M.M.'s plan." SC Br. at 28. The mere fact that TPR was one of the necessary steps toward finalizing M.M.'s permanency plan of TPR/adoption, however, does not mean that the court upon terminating parental rights also determined that reasonable efforts were made to finalize the plan of placing M.M. with adoptive parents.

[Page 29] Accordingly, we find that this sample case was an error case and was ineligible for the entire period in question.

Sample Case #44 (C.B.)

C.B. entered foster care in 1997 or earlier. SC Att. NN at 1. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize the child's permanency plan was due by March 27, 2001. ACF disallowed a total of $1,360 FFP for the periods April 1 -30, 2001 and December 1, 2001 through February 28, 2002. ⁽²⁶⁾ ACF Att. 5, at 10. ACF did not disallow any FFP for the review period.

To show that this case was eligible, South Carolina submitted court orders dated April 27, 2001, November 5, 2001, April 23, 2002, and October 17, 2002. SC Atts. NN - QQ. None of these orders contains a statement documenting that the court made a reasonable efforts determination.

The April 27, 2001 order states that C.B.'s permanency plan is permanent foster care and refers to a supplemental report (submitted by South Carolina with the order) that sets out DSS's efforts to finalize that plan. SC Att. NN at 2 and 5. The order also finds that the parties' agreement that C.B. should remain in the custody of DSS with a permanency plan of permanent foster care is "reasonable." Id. at 2. According to South Carolina, "[i]n approving the agreement as reasonable, the court inherently determined that DSS' efforts to decide upon and finalize C.B.'s plan were reasonable." SC Br. at 32. However, the court was merely approving C.B.'s permanency plan. This is not a sufficient basis for finding that the court determined that reasonable efforts had been made to accomplish the objective of that plan. For the same reason, we conclude that neither the November 5, 2001 order nor the April 23, 2002 order, as to which South Carolina advances the same argument, meets the requirement for a reasonable efforts determination.

South Carolina argues that the October 17, 2002 order meets the requirement for a reasonable efforts determination because it lists services that have been provided to C.B. since the last court hearing. The order states that C.B.'s permanency plan is
[Page 30] "alternate permanent living arrangement with focus on independent living." SC Att. QQ at 2. South Carolina takes the position that "the court, by signing the order, made a judicial determination that reasonable efforts were being made to achieve a permanent plan for C.B.," asserting that "it defies logic to interpret these efforts as anything other than reasonable." SC Br. at 33. However, a court's approval of a child's permanency plan is not a sufficient basis for finding that the court determined that reasonable efforts had been made to accomplish the objective of that plan. Moreover, the issue before us is not whether the efforts made were reasonable, but whether the requirements for documenting a judicial determination to that effect were met.

Accordingly, we conclude that this sample case was ineligible for the entire period in question.

Sample Case #39 (Ch.B.)

Ch.B. entered foster care on October 22, 1998. SC Att. SS, 4^th page. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize Ch.B.'s permanency plan was due by March 27, 2001. ACF disallowed a total of $3,087 FFP for the period December 1, 2001 through August 30, 2002. ACF Att. 5, at 7. ACF did not disallow any FFP for the review period. ⁽²⁷⁾

To show that this case was eligible, South Carolina submitted court orders dated August 2, 2000 and July 26, 2001. SC Atts. RR and SS. The August 2, 2000 order is not relevant since, even if it contains a reasonable efforts determination, another reasonable efforts determination would have been required by December 2001 in order for the case to be IV-E eligible at the beginning of the period covered by the disallowance.

The July 26, 2001 order states that, based on an examination of the file, the court adopts as "reasonable" the parties' "agreement" that Ch.B. remain in DSS custody. SC Att. SS at 2. South Carolina argues that "[t]he court, by adopting the agreement, also adopted the conclusion that the agreement was reasonable. A reasonable agreement is based upon an inherent [Page 31] finding that the efforts being made in furtherance of that agreement are reasonable." SC Br. at 34-35. However, the court order does not state that it is approving an agreement regarding Ch.B.'s permanency plan, which is not identified in the order. (A supplemental report dated the prior month identified Ch.B.'s permanency plan as permanent foster care. SC Att. SS, 4^th page.) In any event, a court's approval of a child's permanency plan is not a sufficient basis for finding that the court determined that reasonable efforts had been made to accomplish the objective of that plan.

South Carolina also asserts that the order shows that the court reviewed a supplemental report that "sets out what DSS was doing--the efforts it was making-to maintain Ch.B. in foster care." SC Br. at 34. The court order refers to a "Court Summary" which may be the supplemental report to which South Carolina refers. SC Att. SS, 1^st page. Even if we could infer from the order that the court had read the supplemental report, however, that is not sufficient to meet the requirement to explicitly document that the court made a reasonable efforts determination.

Accordingly, we conclude that this sample case was ineligible for the entire period in question.

Sample Case #60 (R.K.)

R.K. entered foster care in 1997. SC Att. TT, 7^th page. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize R.K.'s permanency plan was due by March 27, 2001. ACF disallowed a total of $1,017 FFP for the period December 1, 2001 through February 28, 2002. ACF Att. 5, at 9. ACF did not disallow any FFP for the review period.

To show that the case was eligible, South Carolina submitted a court order dated August 27, 2001. SC Att. TT. According to South Carolina, the court made a reasonable efforts determination when it stated that "the Plaintiff has provided appropriate services to the parties . . . ." SC Br. at 36, quoting SC Att. TT at 2. South Carolina argues that this is a determination that reasonable efforts were made to finalize R.K.'s permanency plan, which the court order indicates was adoption, ⁽²⁸⁾ since "the only [Page 32] logical conclusion is that an appropriate service is a reasonable service, and service is synonymous with effort." SC Br. at 36. However, the quoted language does not meet the requirement for an individualized determination of reasonable efforts since there is no specific reference in the order to services provided to any particular party, nor any wording that would link the services provided to the particular child's permanency plan. In any event, the order as a whole is ambiguous regarding whether the court in fact made the requisite determination. The sentence on which South Carolina relies reads in full: "The Court finds that the Plaintiff has provided appropriate services to the parties or that the failure to provide appropriate services was reasonable given the circumstances existing." Thus, it is possible that the court determined instead that reasonable efforts to finalize R.K.'s permanency plan were not required. However, there is no statutory or regulatory exception to the requirement for reasonable efforts to finalize a child's permanency plan.

Accordingly, we conclude that this sample case was ineligible for the entire period in question.

Sample case #62 (C.G.)

C.G. entered foster care on August 26, 1999. SC Att. UU at 5. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize C.G.'s permanency plan was due by March 27, 2001. ACF disallowed a total of $1,017 FFP for the period December 1, 2001 through February 28, 2002. ACF Att. 5, at 11. ACF did not disallow any FFP for the review period.

To show that the case was eligible, South Carolina submitted a court order dated August 10, 2001. SC Att. UU. The order is captioned "Final Order for Termination of Parental Rights" and identifies adoption as the permanency plan for the child. South [Page 33] Carolina argues that "[t]he TPR order sets out the reasonable efforts DSS had made to bring about a successful TPR effort, and the actual TPR order itself is the culmination of those efforts. As argued before, there can be no clearer example of a judicial determination of reasonable effort to finalize a plan of TPR/adoption than a judge ordering that TPR be granted." SC Br. at 37. The mere fact that TPR was one of the necessary steps toward finalizing C.G.'s permanency plan of adoption does not mean that the court upon terminating parental rights also determined that reasonable efforts had been made to finalize the plan of placing C.G. with adoptive parents.

Accordingly, we conclude that this sample case was ineligible for the entire period in question.

Sample Case #66 (R.V.)

R.V. was placed in foster care in 1994. SC Att. WW, 4^th page. Thus, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize R.V.'s permanency plan was due by March 27, 2001. ACF disallowed a total of $2,428 FFP for the period May 1, 2001 through November 30, 2001. ACF Att. 5, at 8. ACF did not disallow any FFP for the review period. ⁽²⁹⁾

To show that the case was eligible, South Carolina submitted an order dated June 10, 2001. SC Att VV. The order states that "[t]he prior permanent plan of . . . adoption shall continue for an additional 6 months, by which time, the plaintiff represents to me, the adoption will be completed." Id., 1^st page. (The order states that parental rights "were terminated by prior order of the court." Id.) South Carolina argues that the court concluded that the permanency plan of adoption "was appropriate; and, therefore, the only conclusion to be drawn is that DSS had made reasonable efforts to finalize this plan because R.V. was to be adopted within the next six months." SC Br. at 38. However, a court's approval of a child's permanency plan is not a sufficient basis for finding that the court determined that reasonable efforts had been made to accomplish the objective of that plan.

[Page 34] We nevertheless conclude based on the following language in the order that the court made a reasonable efforts determination: "It is in the best interests of the minor child that he continue in foster care continuing to make diligent efforts to locate an adoptive resource for the minor child." The order later states: "I further find that the services offered by the Georgetown County Department of Social Services are reasonable in light of the circumstances." Read together, the two sentences explicitly document the court's determination that better than reasonable efforts, i.e., diligent efforts, were made by DSS to finalize R.K.'s permanency plan of adoption.

The June 10, 2001 reasonable efforts determination was not timely, since a reasonable efforts determination was due by March 27, 2001. Accordingly, we conclude that this sample case was ineligible for the month of May 2001 (the first month for which FFP was disallowed) but eligible for the remainder of the period in question.

Sample Case #78 (J.G.)

The record does not indicate when J.G. entered foster care, although it indicates that he was born in 1989. SC Att. ZZ, 11^th page. If he entered foster care prior to March 27, 2000, pursuant to the instructions in the Review Instrument, a judicial determination of reasonable efforts to finalize his permanency plan was due by March 27, 2001. ACF disallowed a total of $5,294 FFP for the period April 1, 2001 - May 31, 2002. ACF Att. 5, at 12. ACF did not disallow any FFP for the review period.

To show that the case was eligible, South Carolina submitted court orders dated February 15, 2001, June 21, 2001, and December 13, 2001. SC Atts. XX - ZZ. None of these orders contains a statement documenting that the court made a reasonable efforts determination.

Each of the orders approves permanent foster care as J.G.'s permanency plan and orders that J.G. remain in DSS's custody. South Carolina argues with respect to the first two orders that "[a] judge, in signing these orders, makes a judicial determination that DSS made reasonable efforts to finalize a plan for J.G., which was permanent foster care." SC Br. at 39. However, a court's approval of a child's permanency plan is not a sufficient basis for finding that the court determined that reasonable efforts had been made to accomplish the objective of that plan.

[Page 35] With respect to the December 13, 2001 order, South Carolina notes that the supplemental report that was submitted to the court at the hearing (submitted by South Carolina as Attachment AAA) shows the services made to maintain J.G. in foster care. South Carolina asserts that "[t]hese services constitute reasonable efforts on the part of DSS to finalize J.G.'s plan; and, by signing the order, the court made its judicial determination to that effect." SC Br. at 39. However, the order does not contain any reference to the supplemental report. In any event, such a reference is not sufficient to meet the requirement to explicitly document that the court made a reasonable efforts determination.

Accordingly, we conclude that this sample case was ineligible for the entire period in question.

Sample cases that ACF determined did not meet the requirements in 45 C.F.R. � 1356.21(b)(1) for a judicial determination of reasonable efforts to prevent the child's removal from home

Sample Case #1 (I.C.)

I.C. was removed from home on July 19, 2002. SC Att. A, 1^st and 2^nd pages; SC Br. at 7. ACF disallowed a total of $859 FFP for the period July 1, 2003 through September 30, 2003. ACF Att. 4, at 15. In addition, ACF disallowed a total of $1,441 FFP for the period October 1, 2003 through February 28, 2004. ACF Att. 5, at 22.

To show that the case was eligible, South Carolina submitted a court order dated September 4, 2002. SC Att. A. The order states that DSS had received a report on April 1, 2002 alleging that I.C.'s mother, who was then 26 weeks pregnant with I.C., had tested positive for cocaine and alcohol. The order then states "[t]he case was indicated for a threat of harm of physical abuse and a threat of harm of physical neglect" and that, as a result of the report to DSS, I.C.'s mother was referred for treatment services. The order further states that I.C. was removed from her mother pursuant to an ex parte order signed on July 22, 2002 after DSS received a report on July 19 that I.C.'s mother had given birth and that both the child and mother tested positive for cocaine. South Carolina argues that "the court inherently found that, given the emergency nature of the removal (I.C. being born testing positive for cocaine), the lack of DSS' effort to prevent removal was reasonable given its previous efforts to assist the mother in obtaining help for her substance abuse problem (the April 2002 referral to New Alternatives)." SC Br. at 7-8.

[Page 36] It is arguable that a court could have considered DSS's referral of the mother to treatment prior to I.C.'s birth as constituting reasonable efforts to prevent the child's removal from home; however, there is no language in the court order indicating that the court made a determination that this was the case. Even if reasonable efforts were not required to prevent I.C.'s removal from home under the circumstances of this case, the regulations require that the State agency obtain a judicial determination to that effect. See 45 C.F.R. � 1356.21(b)(3). The same documentation requirements apply to this type of judicial determination as to a determination that reasonable efforts were made to prevent the child's removal from home. See section 1356.21(d). While the court order here states that, at the July 25, 2002 hearing, "the Court affirmed the emergency action taken on behalf of the minor child," this does not qualify, by itself, as explicit documentation that the court determined that reasonable efforts were not required because one of the circumstances listed in the regulation existed.

Accordingly, we conclude that this sample case was an error case and was ineligible for the entire period in question.

Sample Case #10 (AL-1)
Sample case #36 (AL-2)

AL-1 and AL-2 were siblings who were removed from home on June 27, 2002. SC Att. J at 4. ACF disallowed a total of $521 FFP for sample case #10 and $491 for sample case #36 for the period September 1-30, 2002 and June 1-30, 2003. ACF Att. 4, at 12 and 21. ⁽³⁰⁾

To show that these cases were eligible, South Carolina submitted a court order dated July 23, 2002. SC Att. J. This order reflects that the mother was ordered to place AL-1 and AL-2 in the custody of DSS on June 27, 2002 (the date of the hearing pursuant to which the order was issued). The order states that "the Court finds that the children should be removed since the Defendants have failed to comply with the treatment plan." Id. at 4. The order indicates that, prior to June 27, the children's mother had "been under a Court Ordered treatment plan" that [Page 37] included counseling and random drug screens. Id. at 2-3. South Carolina argues that the order's "recitation" of the court-ordered treatment plan "reflects the reasonable efforts DSS made to prevent A.L.#1 and A.L.#2's removal . . . ." SC Br. at 11.

However, even if DSS offered the services specified by the court to the children's mother, it does not necessarily follow that DSS made reasonable efforts to get the mother to comply with the court-ordered treatment plan. (No mention is made, for example, of whether counseling was provided per the earlier order.) Nor does it necessarily follow from the fact that the mother received some of the court-ordered services that the court determined that the efforts made by DSS were reasonable.

Accordingly, we conclude that these two sample cases were error cases and were ineligible for the entire period in question.

Sample Case #33 (J.B.)

J.B. was removed from home on April 9, 2002. SC Att. X at 3. ACF disallowed a total of $286 FFP for the period April 1 - 30, 2003. ACF Att. 4, at 19.

To show that the case was eligible, South Carolina submitted a court order dated April 29, 2002. SC Att. X. The order summarizes the testimony of a DSS employee, who stated in part that DSS had an open treatment case dating back to June 7, 2001 involving J.B.'s mother, who "had been in an in-patient facility and was supposed to be involved in an after care program through New Alternatives" for treatment of a drug problem. Id. at 3. The order further states that the mother tested positive for cocaine on three occasions since the June 7, 2001 report, including on March 7, 2002. South Carolina argues that since "the court had access to the history of efforts DSS had made to address J.B.'s mother's drug problems[,] [t]here is no other conclusion to be reached other than that the court did find these efforts to be reasonable, though sadly the mother did not avail herself of these efforts." SC Br. at 22. However, the mere fact that the court order shows that the court was aware of some efforts made to prevent the child's removal from home is insufficient to satisfy the requirement for explicit documentation that the court made a reasonable efforts determination.

Accordingly, we conclude that this sample case was an error case and was ineligible for the entire period in question.

[Page 38] Sample Case #15 (T.S.)

T.S. was removed from home on September 23, 1986. SC Att. MM, 3^rd page. ACF disallowed a total of $16,583 FFP for the period October 2, 1986 through June 30, 1991. ACF Att. 5, at 6. ACF did not disallow any FFP for the review period.

To show that this case was eligible, South Carolina submitted a court order dated October 3, 1986. SC Att. MM. According to South Carolina, this order met the requirement for a reasonable efforts determination under the regulations that were in effect at the time the child was removed from home. South Carolina does not explain why it thinks that this order met the requirement for a reasonable efforts determination under those regulations. Nevertheless, we note that, in addition to the order, South Carolina submitted a DSS petition to remove T.S. from home which alleges that "'lack of preventive services were reasonable' due to the inability of the child to protect itself." SC Att. MM, 4^th page. Reference in a court order to such a petition was accepted as documentation of a judicial determination of reasonable efforts for cases in which the child entered foster care prior to October 1, 1986. See New Jersey Dept. of Human Services at 17. However, the October 3, 1986 court order does not refer to the petition, or otherwise state that reasonable efforts were not required. Thus, we find no basis for accepting the order as evidence of a reasonable efforts determination.

South Carolina also argues that the same case "passed" the previous IV-E eligibility review (the 2001 review) and that, accordingly, "the review team should be estopped from disqualifying T.S.'s case." SC Br. at 30. The documents submitted by South Carolina show that T.S. was one of the cases sampled in the 2001 review and that a case other than this sample case was the only case found ineligible in that review. SC Att. LL, 3^rd - 5^th pages. ⁽³¹⁾ This is not a basis for precluding the later finding that the requisite judicial determination was not [Page 39] made until July 1991, however. South Carolina provided no information about what documents were available to ACF when it reviewed this case in 2001. Moreover, even if the 2001 review had found this case ineligible, it was too late at that point for the court to make a determination that reasonable efforts had been made to prevent T.S.'s removal from home. Thus, at least one of the elements of traditional estoppel, reliance, was not present here. ⁽³²⁾

Accordingly, we conclude that this sample case was ineligible for the entire period in question.

Sample Case #43 (L.M.)

The record does not show when L.M. was removed from home; however, the hearing on whether there was probable cause for DSS to take emergency protective custody of L.M. was held on May 22, 2001. SC Att. BBB. ACF disallowed a total of $4,564 FFP for the period June 1, 2002 through September 30, 2003. ACF Att. 4, at 2. In addition, ACF disallowed a total of $1,891 FFP for the period October 1, 2003 through March 31, 2004. ACF Att. 5, at 13.

To show that this case was eligible, South Carolina submitted a court order dated May 29, 2001. SC Att. BBB. The order describes the testimony of a police officer who placed L.M. in emergency protective custody after responding to a call that a child had been assaulted, as well as the testimony of L.M.'s caseworker about the incident. SC Att. BBB at 2. South Carolina also submitted an affidavit signed by L.M.'s caseworker on May 21, 2001 which stated that DSS was unable to offer services to L.M.'s family to prevent the necessity for [Page 40] L.M.'s removal because it had not been providing services to the family prior to this incident and L.M. was "believed to be in substantial imminent danger because of observations made by the . . . Police Department and information provided by neighbors." SC Att. CCC.

South Carolina argues that "[t]he recitation of facts in this order, coupled with the affidavit, clearly show that reasonable efforts could not have been made due to the emergency situation" and that this satisfied the reasonable efforts requirement. SC Br. at 41. Even if there are circumstances in which reasonable efforts are not required to prevent a child's removal from home, however, the regulations require that the State agency obtain a judicial determination to that effect. See 45 C.F.R. � 1356.21(b)(3). The same documentation requirements apply to this type of judicial determination as to a determination that reasonable efforts were made to prevent the child's removal from home. See section 1356.21(d). The order here does not meet the documentation requirements.

In summary, we uphold ACF's disallowance with respect to all of the disputed sample cases, except Sample Care #66, which we conclude was eligible for part of the period in question.

II. The interpretation in 45 C.F.R. � 1356.21(b)(2) of the statutory requirement for a judicial determination to finalize a child's permanency plan as a condition of IV-E eligibility does not conflict with the statute.

South Carolina argues that even if the disputed sample cases lacked a judicial determination of reasonable efforts to finalize the child's permanency plan, the Board should reverse the disallowance for these cases on the basis that the regulation requiring such a determination, at 45 C.F.R. � 1356.21(b)(2), conflicts with the IV-E statute and, therefore, is not an applicable regulation by which the Board is bound. The Board addressed the same argument in another case, concluding that section 1356.21(b)(2) applies and that there is no conflict between that regulation and the IV-E statute. New York State Office of Children and Family Services, DAB No. 1984 (July 1, 2005). ⁽³³⁾ Pursuant to the analysis in that decision, which we [Page 41] incorporate by reference, we conclude that South Carolina's argument is not a basis for reversing the disallowance with respect to the disputed sample cases that failed to comply with section 1356.21(b)(2) or for finding that a case was not an error case.

Conclusion

For the foregoing reasons, we uphold the disallowance of foster care maintenance payments and associated administrative costs for the sample cases found ineligible by ACF, with the exception of sample case #66, which we conclude was eligible for part of the period in question.

Donald F. Garrett

Sheila Ann Hegy

Judith A. Ballard
Presiding Board Member

1. The ACF reviewers found that Sample Case #22 was ineligible on both grounds; however, ACF's brief relies only on the finding that the requirement for reasonable efforts to finalize the permanency plan was not met. ACF Br. at 21.

2. South Carolina's appeal was originally assigned Docket No. A-04-133 but was redocketed for tracking purposes as No. A-05-13 when DAB No. 1949 was issued.

3. South Carolina argued in its notice of appeal that it "should not have to repay administrative costs because case management and planning activities must occur for all children regardless of the actual eligibility of the child . . . ." Notice of appeal dated 7/20/04, at 2. However, South Carolina did not pursue this argument in its brief. In any event, this argument has no merit. Title IV-E funds are available for administrative costs only to the extent that the costs are allocable to IV-E. We see no basis for finding that the costs of case management and planning activities that were associated with ineligible children (who could not reasonably be considered IV-E "candidates") were allocable to IV-E.

4. Social Security Act �� 470 through 479A; 42 U.S.C.A. �� 670 through 679b. The current version of the Social Security Act can be found at www.ssa.gov/OP_Home/ssact/comp-ssa.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. Also, a cross reference table for the Act and the United States Code can be found at 42 U.S.C.A. Ch. 7, Disp Table.

5. ASFA amended section 471(a)(15)(A) to state that "in determining reasonable efforts to be made with respect to a child, as described in this paragraph, and in making such reasonable efforts, the child's health and safety shall be the paramount concern[.]"

6. The Review Instrument is part of the Title IV-E Foster Care Eligibility Review Guide. The 2001 version of the Guide was transmitted to state agencies on November 30, 2001 as an attachment to ACYF-CB-IM-01-11 and appears at www.acf.hhs.gov/programs/cb/laws/im/im0111a1.htm. A revised version of the Review Instrument was transmitted to state agencies on May 30, 2003 as an attachment to ACYF-CB-IM-03-03 and appears at www.acf.hhs.gov/programs/cb/laws/im/im0303.htm.

7. The same language appears in the 2003 Review Instrument in the instructions for question 12.

8. The 2003 Review Instrument states that this reasonable efforts determination "must have occurred by March 27, 2001," or "the child becomes ineligible for title IV-E foster care payments from April 1, 2001 until the judicial determination requirement is met." See instructions for question 16.

9. This refers to affidavits attesting that the judicial determination occurred at a hearing that took place before the affidavit was executed. See 2003 Review Instrument, instructions for question 16.

10. South Carolina also points to the instructions in the Review Instrument that the court order "must contain language to the effect that reasonable efforts [to prevent the child's removal from home] were made or were not required." SC Br. at 5; Review Instrument, instructions for question 13. (This tracks the requirement in section 472(a)(1) of the Act for judicial determinations "to the effect" that reasonable efforts have been made.) The Review Instrument still requires that the court order "contain language" that reasonable efforts have been made, however.

11. We refer to the child at issue for each sample case by first and last initials in order to protect the child's privacy.

12. South Carolina states that "J.T.'s case was declared ineligible for IV-E funding for a period from April 1, 2001 until September 30, 2002." SC Br. at 9. South Carolina does not explain where it obtained the latter date, which is not the same as the date shown on the spread sheet at ACF Attachment 4.

13. South Carolina states that "A.O.'s case was reviewed and declared ineligible for Title IV-E funds for a period beginning April 1, 2001 . . . ." SC Br. at 13. South Carolina does not explain where it obtained that date, which is not the same as the date shown on the spread sheet at ACF Attachment 4.

14. We refer to the court orders by the date they were signed by the court. For this sample case and some others, it appears that South Carolina may consider the date of the hearing, which often preceded the order by weeks or months, as the date of the reasonable efforts determination. In this sample case and sample case #66, the only cases in which it might make a difference, there is no evidence that shows that the court in fact made the determination at the time of the hearing. Accordingly, we must treat the date of the court order as the operative date in those cases.

15. South Carolina states that ACF also found this case ineligible based on the lack of a judicial determination of reasonable efforts to prevent the child's removal from home. However, there is no indication in the record that ACF made such a finding. See ACF Br. at 17, citing ACF Att. 4, at 3.

16. South Carolina states that "[t]he ACF audit of [M.G.'s] ineligibility concluded that he was ineligible for a period from April 1, 2001 until July 31, 2003." SC Br. at 17. South Carolina does not explain where it obtained the latter date, which is not the same as the date shown on the spread sheet at ACF Attachment 4.

17. In both cases, South Carolina asserts that the period of ineligibility ended on February 28, 2004. SC Br. at 15. South Carolina does not explain where it obtained that date, which is not the same as the date shown on the spread sheet at ACF Attachment 5.

18. We note that the order also says that "[t]he supplemental report is hereby incorporated herein and adopted as the Order of this Court" and that the report has a section titled "Extent to which Agency has made Reasonable Efforts to assist Parents and Children in Remedying Continued Foster Care," under which the notation "TPR" (termination of parental rights) appears. SC Att. O at 3^rd and 6^th pages. Since the children's permanency plan was permanent foster care, however, the court's adoption of a report identifying TPR as reasonable efforts is unacceptable as documentation that the court made an individualized determination that reasonable efforts were made to finalize the permanency plan for the children. (Moreover, since the order states that TPR occurred in 1992, this would not qualify as reasonable efforts for the time period in question.)

19. Moreover, although the court order says the report is "adopted in its entirety and approved as the Order of this Court," the report contains the notation "N/A" (not applicable) under the only section referring to "reasonable efforts." SC Att. P, 3^rd and 6^th pages.

20. ACF questions South Carolina's assertion that S.C.'s permanency plan at this point was reunification on the ground that "the order does not specifically refer to a permanency plan" but rather adopts DSS's recommendation for a concurrent plan for TPR if rehabilitation efforts failed. ACF Br. at 22. Even if S.C. had a concurrent plan of reunification and TPR, however, that would not change the result in this case.

21. The preamble goes on to state that "[w]e are not requiring the State to obtain judicial determinations on its efforts regarding permanency plans that it has abandoned." 65 Fed. Reg. 4020, 4052. However, it appears that there was no change in S.C.'s permanency plan until the court approved DSS's recommendation to change the plan. (The preamble notes that the Department "will not require the court to approve [a permanency] plan before the State agency can act on it." Id. However, the preamble continues, "[w]e understand that, in some States, courts provide such active oversight during the course of a permanency hearing that the court actually sets the permanency plan. That is the State's prerogative." Id.)

22. South Carolina asserts that the period of ineligibility was "February until December 2003." SC Br. at 23. South Carolina does not explain where it obtained these dates, which are not the same as the beginning and ending dates shown on the spread sheets at ACF Attachments 4 and 5, respectively.

23. South Carolina asserts that the period of ineligibility was "February until December 2003." SC Br. at 23. South Carolina does not explain where it obtained these dates, which are not the same as the beginning and ending dates shown on the spread sheets at ACF Attachments 4 and 5, respectively.

24. South Carolina asserts that the period of ineligibility began September 1, 2002. SC Br. at 26. South Carolina does not explain where it obtained this date, which is not the same as the beginning date shown on the spread sheet at ACF Attachment 4.

25. Contrary to what South Carolina suggests (SC Br. at 28), ACF did not accept this order as meeting the requirement for a reasonable efforts determination. (If the November 1, 2001 order met the requirement for a reasonable efforts determination, the next determination would be due by November 1, 2002, and the case would be eligible for the month of November even if no determination were made that month. See 45 C.F.R. � 1356.21(b)(2)(ii)).

26. South Carolina asserts that there was a continuous period of ineligibility beginning April 1, 2001 and ending September 30, 2002. SC Br. at 32. South Carolina does not explain why this differs from the dates shown on the spread sheet at ACF Attachment 5.

27. South Carolina asserts that the period of ineligibility was April 1, 2001 through February 28, 2002. SC Br. at 34. South Carolina does not explain why these dates differ from the dates shown on the spread sheet at ACF Attachment 5.

28. ACF asserts that "[t]he record submitted by the State (a DSS report and a Judicial Review Order) does not explicitly document either that there was a 'permanency hearing' or that the judge approved a permanency plan . . . ." ACF Br. at 30. However, there is no requirement in the title IV-E statute or regulations that the reasonable efforts determination be made at a permanency hearing. The preamble to the final regulation indicates only that the timing for obtaining reasonable efforts determinations regarding permanency is tied to the timing of the permanency hearing "because it is a logical determination to make at such hearings and it would ease administrative burden." 65 Fed. Reg. 4020, 4052. Furthermore, as discussed above, there is no federal requirement that the court approve a permanency plan.

29. South Carolina asserts that the child was ineligible beginning April 1, 2001. SC Br. at 38. South Carolina does not explain why this date differs from the date shown on the spread sheet in ACF Attachment 5.

30. South Carolina asserts that sample case #36 was found ineligible from September 1, 2002 "until 'present' (which presumably is the date of review, which was April 2004)." SC Br. at 11. South Carolina does not explain why the latter date differs from the date shown on the spread sheet in ACF Attachment 4.

31. According to ACF, the 2001 review found that this case had ineligible payments outside of the review period which are the same as the payments disallowed here. ACF alleged that it had never been reimbursed for these payments. ACF Br. at 39-40. However, ACF took its information from ACF Attachment 7, the review sheet used in the instant review, which ACF misidentified as the review sheet used in the 2001 review. The disallowance letter issued pursuant to the 2001 review disallowed only payments for the one sample case that was found to be an error case. SC Att. LL, 1^st and 2^nd pages.

32. The prevailing view in the federal courts is that equitable estoppel does not lie against the federal government, if indeed it is available at all, absent at least a showing of affirmative misconduct. See, e.g., Northstar Youth Services, Inc., DAB No. 1884 (2003), and cases cited therein (including Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) and Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984)). Moreover, in order for traditional estoppel to lie against a party, the following elements must be met: (1) the party against whom estoppel is sought must have misrepresented the facts; (2) the party asserting estoppel must have reasonably relied on those facts; and (3) the reliance must have resulted in some harm or detriment to the party asserting estoppel. Id.

33. South Carolina states that its brief, submitted at approximately the same time as New York's brief, "reflects many of the same arguments" that New York "will be arguing." Letter dated 10/12/04 transmitting South Carolina's brief and appeal file.