IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Erie County CYS, :

Petitioner :

:

v. : No. 677 C.D. 2016

: Submitted: October 28, 2016

Department of Human Services, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: November 21, 2016

Erie County Children and Youth Services (CYS) petitions for review 

of the order of the Department of Human Services (Department) upholding the 

order of the Bureau of Hearings and Appeals (BHA) granting C.S.’s 

(Grandmother) request for adoption assistance subsidy for her adopted daughter, 

K.S. (K.S. or child). We affirm.

K.S. was born on February 14, 2008, and was removed from her 

mother’s (Mother) home and taken in by her maternal Grandmother on May 10,

2011. Grandmother, a recovering alcoholic, sought emergency temporary 

guardianship of K.S. from the Court of Common Pleas of Erie County (trial court) 

and was appointed as K.S.’s temporary legal guardian. On May 25, 2011, 
2

Grandmother relapsed into alcohol and CYS removed K.S. from her home. A 

Master of the trial court recommended shelter care for K.S. pursuant to Section 

6332 of the Pennsylvania Juvenile Act, 42 Pa.C.S. § 6332, noting that it was not in 

the child’s best interest to return her to Mother or Grandmother’s care. The trial 

court ordered that K.S. be removed from Grandmother’s care pursuant to a 

protective custody order, and K.S. was placed in the temporary legal and physical 

custody of CYS.

CYS filed a dependency petition, alleging that K.S. was without 

proper parental care or control as it pertains to Mother, her biological father or 

Grandmother, and that it would be contrary to the welfare, safety and health of 

K.S. to remain under their care. Specifically, CYS argued that K.S.’s Mother had

significant drug and alcohol addictions, her biological father had not had a 

relationship with K.S. since her birth, and that Grandmother also had an alcohol 

addiction and had relapsed since obtaining temporary guardianship.

In June 2011, the Master recommended that K.S. be declared 

dependent pursuant to Section 6302 of the Pennsylvania Juvenile Act, 42 Pa.C.S. § 

6302. The Master found that allowing K.S. to remain in Grandmother’s home 

would be contrary to the child’s welfare and that reasonable efforts were made by 

CYS to prevent or eliminate the need for removal of the child from the home. The 

trial court adopted the Master’s recommendation and ordered that K.S. be declared 

dependent.
3

K.S. remained in kinship care with a relative until November 2011 at 

which time she was placed in foster care. In December 2012, the trial court 

ordered a change in placement and returned K.S. to the care of Grandmother and 

Grandmother’s partner, with the placement goal of adoption. The child’s 

biological parents voluntarily relinquished their parental rights.

In January 2013, Grandmother applied for adoption assistance, 

claiming that K.S. met the criteria for being eligible for adoption assistance1and 

that she had a genetic condition which indicates a high risk of developing a disease 

or disability due to her biological mother’s mental health issues and drug and 

alcohol dependency.

2 Grandmother stated that she was unable to adopt K.S. 

without adoption assistance.

In March 2013, Grandmother entered into a Subsidized Adoption 

Assistance Agreement with CYS which provided that K.S. was eligible for nonrecurring expenses only,

3

and that monthly adoption assistance payments were not 

 

1

In the application for adoption assistance, Grandmother noted that K.S. was eligible for 

adoption assistance because she: was under 18 years of age; was a citizen or qualified alien of 

the United States; was involuntarily removed from her home pursuant to a judicial determination 

that continuation in the home would be contrary to the welfare of the child; was free for adoption 

because parental rights had been terminated, or parental death, or a combination of the two; was 

in the legal custody of a public or licensed private agency; and had been in placement not less 

than six months.

2 Grandmother later testified that K.S. exhibited signs of attention deficit hyperactivity 

disorder and that she had been in therapy for at least eight months.

3

The Subsidized Adoption Assistance Agreement explained that non-recurring expenses 

are:

(Footnote continued on next page...)
4

applicable. The basis for the denial of assistance was that Pennsylvania law

precludes adoption assistance where there is a finding that continuation in a home 

is contrary to the welfare of the child and that reasonable efforts had been made to 

prevent removal before adoption was considered. Because there was a judicial 

determination that the continuation in Grandmother’s home at one time was not in 

the child’s best interest, adoption assistance was deemed unavailable. On April 23, 

2013, Grandmother appealed the denial of monthly adoption assistance and the 

next day the adoption of K.S. by Grandmother was made final.

Following a hearing before the BHA, the Administrative Law Judge 

(ALJ) issued an adjudication recommending that Grandmother’s appeal be 

sustained. Explaining that Section 3140.202 of the Department’s regulations, 55 

Pa. Code § 3140.202, requires CYS to certify for adoption assistance children 

whose placement goal is adoption, and that K.S. was placed in Grandmother’s 

home in December 2012 with the goal of adoption, the ALJ found that K.S. was 

 

(continued...)

[O]ne-time expenses which are reasonable and necessary costs 

directly related to the legal adoption of a child. These expenses 

include: adoption fees; court costs; attorney fees incurred by 

adoptive parent; and other expenses directly related to the adoption 

which have not been reimbursed from other sources. Such 

expenses may include health and psychological examinations, 

consultations with child’s medical providers, transportation and the 

reasonable cost of lodging and food for the child and the adoptive 

parent when necessary to complete the placement or adoption 

process. Adoptive families may be reimbursed up to $2,000 in 

non-recurring expenses based on actual receipts.

(Record (R.) Item No. 3, at A-1.)
5

entitled to monthly adoption assistance. The BHA adopted the ALJ’s 

recommendation in its entirety. CYS petitioned for reconsideration, which the 

Department granted. The Department then upheld the BHA’s determination. This 

appeal by CYS followed.

On appeal,4 CYS argues that the Department erred in determining that 

Grandmother was entitled to adoption assistance payments. Citing to 42 U.S.C. § 

672(a)(2)(A)(ii), which deals with “Removal and Foster Care Placement 

Requirements,” CYS argues that adoption assistance payments can only be made if 

there was “a judicial determination ... that continuation in the home from which 

removed would be contrary to the welfare of the child and that reasonable efforts 

... have been made.” 42 U.S.C. § 672(a)(2)(A)(ii). It contends that if a child is 

removed from the home to which she is ultimately returned, then the removal 

home is requesting the subsidy. K.S. was initially removed from Grandmother’s 

home because remaining there would be contrary to K.S.’s welfare and reasonable 

efforts had been made to prevent removal;

5

therefore, K.S. was ineligible for 

adoption assistance payments. However, 42 U.S.C. § 672(a)(2)(A)(ii) applies only 

 

4 Our review is limited to determining whether the Department’s adjudication is 

supported by substantial evidence, whether it is in accordance with the law, or whether 

constitutional rights were violated. Adoption ARC, Inc. v. Department of Public Welfare, 727 

A.2d 1209, 1212 (Pa. Cmwlth. 1999).

5

This was established through testimony of Susan Passerotti, a fiscal technician for CYS, 

who testified that K.S. was ineligible for a subsidy because she was removed from 

Grandmother’s home in May 2011 because it was against the best interests of the child to reside 

there; therefore, she did not meet the eligibility requirements. She explained that, “When you’re 

returned to a removal, you are no longer considered out-of-home foster care, so [K.S.] would not 

be eligible for any funding source.” (Notes of Transcript at 21.)
6

to foster care maintenance payments and not adoption assistance, which may be the 

reason that the Department does not mention this in its brief.

Nonetheless, CYS argues that 42 U.S.C. § 672(a)(2)(A)(ii) has some 

application based on our decision in Gruzinski v. Department of Public Welfare, 

731 A.2d 246 (Pa. Cmwlth. 1999) which, citing to 55 Pa. Code § 3140.205, 

provides that, among other factors,6the following must also be present for adoption 

assistance to be available:

1. The child’s removal from the home is the result of a 

judicial determination that continuation in the home is 

contrary to the child’s welfare, or there is a voluntary 

placement agreement; and

2. At the time the petition which seeks removal from the 

home was filed, or the voluntary placement agreement 

was signed, the child met the Aid for Families with 

Dependent Children (AFDC) relatedness test.

Gruzinksi, 731 A.2d at 257 (footnotes omitted).

Relying on Gruzinski, CYS maintains that the ALJ failed to consider 

that K.S.’s removal from Grandmother’s home was the result of a judicial 

determination that remaining in the home would be contrary to the child’s welfare 

and that reasonable efforts were made in preventing the removal. This argument is 

incorrect for several reasons.

 

6

The “other factors” are those established under 55 Pa. Code § 3140.202(b).
7

First, while K.S. was initially removed from Grandmother’s home by 

the trial court because it was determined to be in her best interest, the trial court 

effectively reversed that determination when it returned K.S. to the care of 

Grandmother and Grandmother’s partner, with the placement goal of adoption. In 

effect, even if this provision were applicable, and we interpreted it the way CYS 

suggests, there is no longer a judicial determination that K.S.’s removal from 

Grandmother’s home was in her best interest.

Second, in Allegheny County Office of Children v. Department of 

Public Welfare, 912 A.2d 342, 346 (Pa. Cmwlth. 2006), we found that for a child 

to be eligible for adoption assistance, he or she does not have to satisfy the 

requirements set forth in 55 Pa. Code § 3140.205, reasoning:

This issue was directly addressed and resolved by this 

Court in the case of Ward v. Pennsylvania Department of 

Public Welfare, 756 A.2d 122 (Pa. Cmwlth. 2000).... 

The Department contended that eligibility for assistance 

required the applicants to satisfy the standards in both 55 

Pa. Code § 3140.202 and 55 Pa. Code § 3140.205. This 

Court concluded that the two provisions addressed 

different objectives and explained:

In sum, the federal eligibility requirements [§ 

3140.205] determine only the source and amount of 

reimbursement that the county agency will receive; 

the state eligibility requirements contained in § 

3140.202 determine whether the child and adoptive 

parents are entitled to receive assistance from the 

county agency.... Because it is undisputed that [the 

child] meets the requirements outlined in § 

3140.202, she is eligible to receive all forms of 

adoption assistance available to her from the 

Commonwealth.
8

[Ward, 756 A.2d] at 125.

When parental rights are terminated, a child is eligible7for adoption 

assistance under Section 3140.202(b) of the Department’s regulations, 55 Pa. Code 

§ 3140.202(b), which states:

(b) The county agency shall certify for adoption 

assistance children whose placement goal is adoption and 

who meet the following requirements:

(1) The child is 17 years of age or younger.

(2) Parental rights have been terminated under 23 

Pa.C.S. Part III (relating to the Adoption Act).

(3) The child is in the legal custody of the county 

agency or another agency approved by the Department.

(4) The child shall have at least one of the 

following characteristics:

(i) A physical, mental or emotional 

condition or handicap.

 

7

Section 772 of the Adoption Opportunities Act defines “eligible child,” in relevant part, 

as:

[A] child in the legal custody of local authorities where parental 

rights have been terminated pursuant to the procedure set forth in 

Article III of the act of July 24, 1970 (P.L. 620, No. 208), known 

as the “Adoption Act,” and such child has been in foster placement 

for a period of not less than six months and where the child has 

been shown to be a difficult adoption placement because of a 

physical and/or mental handicap, emotional disturbance, or by 

virtue of age, sibling relationship, or ethnicity....

Act of June 13, 1967, P.L. 31, added by Act of December 30, 1974, P.L. 1039, as amended, 62 

P.S. § 772.
9

(ii) A genetic condition which indicates a 

high risk of developing a disease or handicap.

(iii) Be a member of a minority group.

(iv) Be a member of a sibling group.

(v) Be 5 years of age or older.

(Emphasis added.)

Here, the trial court ordered a change in placement and returned K.S. 

to the care of Grandmother in December 2012 with the goal that she would be 

adopted by Grandmother. The child is younger than 17 and free for adoption 

because her biological parents voluntarily terminated their parental rights. She was 

in the custody of CYS until December 2012, and given her biological mother’s 

mental health issues and drug and alcohol dependency, the child is said to have a 

genetic condition which indicates a high risk of developing a disease or disability.

Because K.S. meets the eligibility requirements set forth in 55 Pa.

Code § 3140.202, Grandmother was eligible to receive adoption assistance.

Accordingly, we affirm the Department’s order.

___________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Erie County CYS, :

Petitioner :

:

v. : No. 677 C.D. 2016

:

Department of Human Services, :

Respondent :

O R D E R

AND NOW, this 21st day of November, 2016, the final order of the 

Department of Human Services (Department) dated April 4, 2016, at No. 075-13-

0011, is affirmed.

___________________________________

DAN PELLEGRINI, Senior Judge