IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd and Stacey Myers, :

Petitioners :

:

v. : No. 506 C.D. 2015

: Submitted: October 30, 2015

Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge1

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE LEAVITT FILED: March 4, 2016

Todd and Stacey Myers (Parents) petition for review of an order of the 

Department of Human Services, Bureau of Hearings and Appeals (Department) 

adopting the recommended adjudication of an Administrative Law Judge (ALJ). 

The ALJ recommended affirming the decision of Adams County Children and 

Youth Services (CYS) to deny Parents’ request for an increase in the monthly 

adoption subsidy they receive for their child, T.M. (Child). Discerning no error by 

the Department, we affirm.

By way of background, The Federal Adoption Assistance and Child 

Welfare Act of 1980,2an amendment to Title IV–E of the Social Security Act, 

 

1

This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt 

became President Judge.

2

42 U.S.C. §§670–679(c).
2

provides for assistance for “special needs” children who are adopted.

3

In 

accordance with the federal act, each state must enact its own program to receive 

this assistance.4 In Pennsylvania the law is commonly referred to as the Adoption 

Opportunities Act.

5

 It is intended to “promote the placement in adoptive homes of 

children who are physically and/or mentally handicapped, emotionally disturbed,

or hard to place by virtue of age, sibling relationship or ethnicity.” Section 771 of 

the Adoption Opportunities Act, 62 P.S. §771. Under the Act, an adopting family

may apply for financial assistance on behalf of a child with such special needs, 

provided that the child meets certain eligibility standards. Under the applicable 

regulation, a child with “[a] physical, mental or emotional condition or handicap” 

is eligible for adoption assistance. 55 Pa. Code §3140.202.6

 

3

42 U.S.C. §671.

4

42 U.S.C. §673.

5 Act of June 13, 1967, P.L. 31, as amended, added by Section 1 of the Act of December 30, 

1974, P.L. 1039, 62 P.S. §§771–774.

6

In full, the child eligibility regulation states:

(a) The county children and youth social service agency (county agency) is the 

sole authority for certifying a child’s eligibility for adoption assistance. 

(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.

(ii) A genetic condition which indicates a high 

risk of developing a disease or handicap.

(Footnote continued on the next page . . .)
3

The Department’s regulations further provide that the county agency 

and the prospective adopting parents must execute an adoption assistance 

agreement at the time of, or before, the court issues the final adoption decree. 55 

Pa. Code §3140.203(a). For adoption assistance payments, “[t]he amount of the 

adoption assistance payment may not exceed the foster care maintenance payment 

which would have been paid if the child for whom the adoption assistance payment 

is made were living in a foster family home.” 55 Pa. Code §3140.204(b)(1)(i).

With this background in mind, we turn to the facts of this case. Child 

was born on February 4, 2007, and taken into CYS’s custody shortly thereafter. 

On August 8, 2007, CYS placed Child into foster care with Parents. From 2007 to 

2011, CYS compensated Parents $40 per day ($1,200 per month) for foster care 

services. In April 2011, Child was diagnosed with Reactive Attachment Disorder 

(RAD).

7

 Child was also diagnosed with Attention Deficit Hyperactivity Disorder 

 

(continued . . .)

(iii) Be a member of a minority group.

(iv) Be a member of a sibling group.

(v) Be 5 years of age or older.

(c) Prior to certification for adoption assistance, the county agency shall make 

reasonable efforts to find an adoptive home without providing adoption 

assistance. Evidence of this effort shall be recorded in the case record and include 

registration with the Department’s adoption exchange for at least 3 months.

(d) If it would be against the best interests of the child because of factors, such as 

the existence of significant emotional ties with prospective adoptive parents while 

in the care of the parents as a foster child, the requirement of subsection (c) does 

not apply.

55 Pa. Code §3140.202.

7

The National Institutes of Health defines Reactive Attachment Disorder as “a problem with 

social interaction that occurs when a child’s basic physical and emotional needs are neglected, 

particularly when the child is an infant.” 

https://www.nlm.nih.gov/medlineplus/ency/article/001547.htm (last visited March 2, 2016).
4

(ADHD), Pervasive Development Disorder (PDD), asthma and environmental 

allergies.

On July 26, 2011, Parents executed an adoption assistance agreement 

with CYS. The agreement provided that CYS would continue making payments to 

Parents of $40 per day/$1,200 per month as an adoption assistance subsidy. 

Reproduced Record at 272a (R.R. __). The agreement stated, in pertinent part:

C. The County certifies that the child is eligible for a Medicaid 

card. The County is not responsible for any medical, dental, 

prescription, psychological, psychiatric or other such services 

not covered by the medical assistance program unless they are 

specified in this agreement.

* * *

E. An adoption assistance subsidy cannot exceed the maximum 

foster care maintenance payment established by Adams County 

Children and Youth Services.

* * *

G. Once the adoption has been finalized, the adoptive parent(s) 

may use the adoption assistance payment in any way that 

incorporates the child into the family without Agency oversight 

or approval.

* * *

K. The terms of the Adoption Assistance may be re-negotiated 

at any point by The County of Adams or the adoptive parents 

while the Agreement is in effect. Changes must be made with 

the concurrence of both adoptive parents and the County. A 

change in the terms of the Agreement requires a new 

Agreement. The adoptive parents may request an increase in 

the amount of their subsidy due to changes in the needs of the 

child or due to the fact that the needs of the child were 

underestimated during the initial negotiations. The family must 

provide documentation related to changes in the needs of the 

child.
5

L. It is understood that the County will not be liable for any 

costs incurred by the adoptive parent(s), which are not included 

in this Agreement.

R.R. 273a-74a. On September 5, 2011, Parents adopted Child and began receiving 

an adoption subsidy of $40 per day or $1,200 per month.

On June 10, 2014, Parents requested an increase in their adoption 

subsidy rate from $40 per day to $70 per day, i.e., the maximum subsidy paid by 

CYS. Parents asserted that, prior to the adoption, CYS did not provide counseling 

or education on RAD, treatment of the disorder, or where to find a specialist in 

treating children with RAD. Child had begun exhibiting the following behaviors: 

lack of age appropriate safety awareness; soiling and wetting inappropriately; 

lying; defiance; self-harm; aggression toward siblings and pets; raising fists in 

anger toward Parents; and destroying property. R.R. 263a. Child requires constant 

supervision and alarms on his bed. Parents feared that without specialized therapy, 

Child will never be able to care for himself and could end up in a residential 

treatment facility. CYS refused to increase Parents’ subsidy, finding that their 

current monthly subsidy of $1,200 was sufficient. R.R. 268a. Parents appealed,

and the ALJ conducted a hearing on November 20, 2014.

Parents presented Sue Cohick, CYS’s administrator, as a witness. 

Cohick explained that each county is responsible for establishing its foster care and 

adoption subsidy amounts, which are approved by the Department. Notes of 

Testimony, 11/20/2014, at 69 (N.T. __); R.R. 124a. Currently, the rates available 

from CYS are $30 or $40 per day. A family’s subsidy is reviewed on an annual 

basis. Cohick testified that other families in Adams County caring for a child with 

RAD receive a subsidy from CYS of either $30 or $40 per day, depending upon 

the severity of the diagnosis. Cohick opined that a child with an acute chronic or 
6

permanent medical condition or physical disability who requires intensive homebased medical intervention on a 24-hour basis would receive the $40 rate. Cohick 

testified that families are free to use the subsidy in any way they wish, for 

whatever purpose they decide, with no oversight by CYS. Cohick explained that 

because Parents received $40 per day while Child was in their foster care, that rate 

continued after they adopted him. This is consistent with the Department’s 

regulations. If an adoptive family needs additional assistance with a child’s special 

needs, CYS offers information on available post-adoption services such as respite 

care, support groups and other services through the Statewide Adoption and 

Permanency Network.

Cohick acknowledged that in 2013 CYS paid a subsidy of $70 per day

to one family. This was for a paraplegic child unable to feed, clothe or bathe 

herself. This child had such severe, life-threatening medical needs that Life Lion, 

a medical helicopter transport service, moved its pickup location closer to the 

child’s home in order to attend to her medical emergencies. However, effective 

July 1, 2014, CYS extinguished the $70 daily rate.

Following the hearing, the ALJ issued an adjudication recommending 

that Parents’ appeal be denied. The ALJ found, based on Mrs. Myers’ testimony, 

that in 2013 Parents earned $45,000 in taxable income plus $14,400 in non-taxable 

adoption subsidy income for Child. The ALJ concluded that Parents had sufficient 

resources to pay $200-$220 for Child’s biweekly visits to his psychologist; $350 

every three months for visits to a neurologist in Philadelphia; and to pay for 

babysitters and for family vacations. Noting that in 2013 the Department denied

Parents’ appeal of CYS’s refusal to increase Child’s adoption subsidy from $40 to 

$70 per day, the ALJ held that the doctrine of res judicata prevented Parents from 
7

relitigating the terms of their adoption assistance agreement.8 The ALJ further 

found that CYS had paid the $70 per day subsidy to a single family whose child 

had severe medical needs and discontinued the payment in 2014 when the family 

left Adams County. Because Parents were receiving the maximum subsidy 

available to foster parents, the ALJ held that increasing that rate for Parents would 

violate 55 Pa. Code §3140.204(b)(1)(i). Parents appealed. On March 5, 2015, the 

Department entered an order adopting the ALJ’s recommendation in its entirety. 

Parents petitioned for this Court’s review.

On appeal,9 Parents argue that the Department incorrectly focused on 

whether the denial of their requested increase in Child’s subsidy was consistent 

with the regulations. Parents argue that the Department ignored substantial 

evidence that Child’s needs were underestimated at the time of adoption and have 

increased in severity over time, thereby warranting a renegotiation of the adoption 

assistance agreement. Parents further contend that the Department erred by finding 

that the maximum subsidy was $40 per day when the maximum subsidy in Adams 

County was $70 per day at the time they appealed. Parents also argue that the 

Department erred in finding that they did not supply sufficient financial 

information to support their requested subsidy increase. Finally, Parents assert that 

the Department erred in concluding that their current subsidy of $40 per day is 

sufficient to incorporate Child into their family and cover unreimbursed medical 

expenses.

 

8 None of the documentation from the 2013 appeal is included in the record.

9 Our review is to determine whether the Department’s adjudication is supported by substantial 

evidence, 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).
8

Intervenor CYS counters that it correctly refused to increase the 

adoption subsidy for Child because the Department’s regulation limited Parents to 

a maximum subsidy of $40 per day. CYS also contends that the $40 per day 

subsidy is sufficient to cover the costs of caring for Child.

As noted, the Department’s regulation on adoption assistance 

payments states:

The amount of the adoption assistance payment may not exceed 

the foster care maintenance payment which would have been 

paid if the child for whom the adoption assistance payment is 

made were living in a foster family home.

55 Pa. Code §3140.204(b)(1)(i). CYS’s adoption assistance agreement, including 

the one signed by Parents, echoes the regulation: “An adoption assistance subsidy 

cannot exceed the maximum foster care maintenance payment established by 

[CYS].” R.R. 273a. Parents do not dispute that they received a foster care 

maintenance payment of $40 per day while Child was in their foster care. CYS’s 

administrator testified that $40 per day is the maximum subsidy available in 

Adams County. Thus, the Department correctly held, in accordance with its 

regulation, that the maximum adoption assistance payment available to Parents is 

$40 per day.

That CYS paid a subsidy of $70 per month to one family in 2013 does 

not change the result. The child in that case was severely challenged by paraplegia 

and, simply, a unique case. Although Child suffers RAD, he can talk, walk, feed 

and clothe himself and be home-schooled, all without a full-time caregiver in

addition to Parents. Other children in Adams County diagnosed with RAD receive 

either $30 or $40 per day depending upon the severity of the diagnosis. In any 

event, assuming arguendo that $70 per day was the maximum available subsidy 
9

when Parents requested an increase on June 10, 2014, that rate would have only 

been available to Parents for a few weeks before it was extinguished on June 30, 

2014.

In sum, because the Department correctly determined that its 

regulation limited Parents’ adoption assistance payment to $40 per day, we need 

not address Parents’ other issues. Accordingly, the order of the Department is 

affirmed.

 ______________________________

 MARY HANNAH LEAVITT, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd and Stacey Myers, :

Petitioners :

:

v. : No. 506 C.D. 2015

:

Department of Human Services, :

Respondent :

O R D E R

AND NOW, this 4

th day of March, 2016, the order of the Department 

of Human Services, Bureau of Hearings and Appeals, in the above-captioned 

matter dated March 5, 2015, is AFFIRMED.

 ______________________________

 MARY HANNAH LEAVITT, Judge