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, Judge 1 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).
T he 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, 2 an 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

– 67 9(c)

.2

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

. 3 In
accordance with the f

ederal a ct, each state must enact its own program to receive
this assistance. 4 I n Pennsylvania the law is commonly referred to as the Adoption Opportunities Act

. 5 It is i ntended 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 meet s certain eligibility standards. Under the applicable regulati on , 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 indica tes 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 a n adoption assistance
agreement at the time of
, or before
, the court is sues 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 Fe bruary 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 eff

orts 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 D isorder a s “ a problem with social inter action 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 spec ified 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 us e 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 wh ile 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 subsi dy 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 th e 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, treatm ent 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 tow ard 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 an d 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 i s 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 or6

permanent medical condition or physical disability who requires intensive home

based medical intervention on a 24

- hour bas is would recei ve the $40 rate. Cohick testified that families are free to use the subsidy in any way they wish, for whatever purpose they dec ide, 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 atte nd to her medical emergencies. However, effective July 1, 2014, CYS extingu ished 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

a doption 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 from7

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. B ecause Parents were re ceiving 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 recommendatio n 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 t he costs of caring for Child.

As noted, the Department’s regulation on adoption assistance
payments states:

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 th e adoption assistance payment is made were li ving 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 m aximum 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 t he 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 subsidy9

when Parents reques ted 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, JudgeIN 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