Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: New Hampshire Department of Health and Human Services
DATE: January 27, 1992
Docket No. 91-129
Decision No. 1296
DECISION
The New Hampshire Department of Health and Human Services (State)
appealed
a determination by the Administration for Children and Families
(ACF)
disallowing $222,825 in federal financial participation (FFP)
claimed by the
State under title IV-E of the Social Security Act (Act)
for foster care
maintenance payments made by the State for calendar year
1986. ACF
found that certain payments in a random sample did not meet
the requirements
for title IV-E funding on one or more grounds, and
extrapolated the results
of the sample to all payments for 1986. The
State appealed the portion
of the disallowance relating to the sample
cases which ACF found lacked a
judicial determination required by
section 472(a)(1) of the Act. 1/
For the reasons discussed below, we uphold ACF's determination.
Relevant Statutory Authority and ACF Interpretations
Under section 472(a)(1) of the Act, FFP is available in foster
care
maintenance payments for a child removed from the home of a
relative
only if, among other conditions --
the removal from the home . . . 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) have
been made . . . .
Section 471(a)(15) in turn requires that, effective October 1, 1983,
a
state plan under title IV-E 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 . . .
.
The "contrary to the welfare" requirement was continued from the
foster
care program previously funded under section 408 of the Act.
The
"reasonable efforts" requirement was added when the title IV-A
foster
care program was transferred to a new title IV-E by the
Adoption
Assistance and Child Welfare Act of 1980, Public Law 96-272.
ACF regulations implementing Public Law 96-272 do not elaborate on
the
statutory judicial determination requirement. However, a
policy
announcement issued on January 13, 1984 stated that the
judicial
determination must be made "at the time of the removal of a child
from
his home" and explained:
The court, after hearing the evidence, must be
satisfied that
reasonable efforts . . . have
been made. Review and approval of
the [state] agency's report and
recommendation alone are not sufficient
to meet the requirements of the Act;
the court must make a determination
that the agency's efforts were, in the
judgment of the court, reasonable
for preventing placement.
With regard to emergency situations, if the agency's
judgment was
that services could not have prevented
removal of the child, the
court at the time of the adjudicatory hearing must
find that the lack of
preventive efforts was reasonable.
ACYF-PA-84-1, 4th page (at ACF exhibit (ex.) 1). ACF also issued
two
information memoranda, ACYF-IM-87-28 (October 7, 1987) and
ACYF-IM-89-08
(April 17, 1989), which discussed the circumstances under which
ACF
would accept nunc pro tunc (NPT) court orders as evidence
that.the
requisite judicial determinations were made. 2/ Essentially,
these
information memoranda made it clear that NPT orders would be
acceptable
only when used "to supply, for the record, something that has
actually
occurred, but was omitted from the record through inadvertence
or
mistake." ACYF-IM-87-28, 1st page. This information memorandum
further
stated that --
Requested documentation may include the transcript
of court
proceedings and/or the agency's report to
the court, or any other
documentation that would confirm that the information
was actually
presented to the court at the previous hearing and that the
court made
the determination(s) at that time.
Id., 2nd page.
The judicial determination requirement was also discussed in
the
"Financial Review Guide For On-Site Reviews of The Title IV-E
Foster
Care Program," transmitted by ACYF-IM-85-25 (August 14, 1985).
The
review guide stated that the court order (in other than
voluntary
placements) "must contain a statement to the effect that
continuation of
residence at home is contrary to the welfare of the child or
that
placement is in the best interests of the child." The guide
also
explained that, after October 1, 1983, the court order must state
either
that "reasonable efforts were made to prevent removal from the home"
or
"it was not appropriate or in the best interests of the child to
prevent
removal from the home." ACYF-IM-85-25, Attachment A, Title IV-E
Foster
Care Eligibility Review Checklist Guide, pp. 2-3.
The checklist for title IV-E reviews included in ACYF-IM-85-25 gave
rise
to questions about the judicial determination requirement which
were
addressed in ACYF-PIQ-86-02 (May 8, 1986). That issuance
explained
circumstances which warranted a finding that the appropriate
judicial
determination had been made, even where the court order itself did
not
contain language to satisfy the statutory requirements. The
issuance
stated in pertinent part:
The fact that State laws include generic provisions
referring to a
class of children is not sufficient
to satisfy the requirements of
section 427, which relate to an individual
determination for each child.
However, if State law unambiguously
requires.that removal may only be
based on a determination that remaining in
the home would be contrary to
the child's welfare (and in the appropriate
circumstances, that removal
can only be ordered after reasonable efforts to
prevent removal have
been made), it must be assumed that a judge who orders a
child's removal
from the home in accordance with that State law does so only
for the
reasons authorized by the State statute. This conclusion can be
drawn
only if the state law clearly allows removal under no
other
circumstances except those required under section 472(a)(1) of the
Act.
If a State can show that it has such a clear and unequivocal State
law,
and if the court order is expressly based on that law, then the
order
can be accepted as sufficient evidence that the required
determinations
have been made.
ACYF-PIQ-86-02, pp. 2-3 (emphasis in original). The issuance
also
explained that language in a petition submitted to a court would
not
suffice to meet the requirements unless the court order
expressly
adopted the relevant language of the petition and made clear that
a
judicial determination had been made. Id., p. 5.
Basis for Disallowance
The disallowance was based on a review conducted by ACF. The report
on
the review found that "[m]ost original court orders did not
indicate
that reasonable efforts were made to prevent the removal of the
child
from the home or that the child was removed from his/her home because
it
would be contrary to his/her welfare to remain there." Letter from
Horn
to Bird dated 7/15/91, enclosure, p. 6. The report noted that,
to
supplement the original court orders, the State had
provided
"approximately 112" NPT orders which stated that reasonable efforts
were
made and that the child was removed from the home because it
was
contrary to his/her welfare to remain there, issued by the courts
which
issued the original orders. Id. The report also noted that
the State
had provided reports made by the State agency to the court
and
affidavits from agency social workers and legal staff which
verified
that the information necessary to make the "reasonable efforts"
and
"contrary to the welfare" determinations was presented to the
court.
However, the report stated that these documents did not verify that
this
information "was considered by the court or that the judge used it
to
make a determination." Id. The report found a total of
121.errors
based on the failure to comply with the judicial
determination
requirements. 3/ Id., p. 5.
State Arguments
The State acknowledged that the original court orders did not
contain
express findings that "reasonable efforts had been made to prevent
the
removal of the child from the home" and that "continued maintenance
of
the child in the home would be contrary to the welfare of the
child."
However, the State took the position that the NPT orders, together
with
the State agency reports to the court, were sufficient to establish
that
these determinations were made when the original court orders
were
issued. The State asserted that ACF found this
documentation
unacceptable based on the standards contained in information
memoranda
issued after the calendar year reviewed (i.e., ACYF-IM-87-28
and
ACYF-IM-89-08). The State argued that ACF's finding was
thus
unreasonable and unlawful because the courts which issued the
original
orders did not normally make bench notes or provide for other
records of
the proceedings and were unaware that such records would be
required.
The State asserted that the validity of the NPT orders should be
judged
based on ACYF-PA-84-1, issued in 1984.
The State also argued that this case was distinguishable from
Nebraska
Dept. of Social Services, DAB No. 1250 (1991), in which the
Board
rejected NPT orders as insufficient to establish that the
requisite
judicial determinations had been made. The State pointed out
that,
unlike the situation in Nebraska, where four of the five NPT orders
in
question were virtually identical and were signed on the same date by
a
single judge, the NPT orders here were issued at different times
by
numerous different presiding judges, using different language.
In
addition, the State asserted that here, unlike Nebraska, the
State
provided documents which showed that the courts which issued
the
original orders had sufficient information available to make
the
requisite determinations. .The State also asserted that,
consistent
with ACYF-IM-87-28 and ACYF-IM-89-08, State law only permitted
NPT
orders to be used to supply for the record something that has
actually
occurred but was omitted from the record. The State argued
that, in
view of this limitation, the NPT orders necessarily established
that
"reasonable efforts" and "contrary to the welfare" determinations
were
made at the time the original court orders were issued.
The State also took the position that the requisite
judicial
determinations were implicitly contained in the original court
orders
under New Hampshire law. The State cited sections 169-C:15 and
169-C:16
of its Child Protection Act, which provide for a preliminary
hearing
upon the filing of a petition alleging abuse or neglect of a child
and
set forth the orders or preliminary dispositions which may be made
by
the court. See State ex. 4. The State asserted that under
section
169-C:15, "a case can proceed from the Preliminary Hearing stage to
the
adjudicatory stage only if the petitioner proves the child to be
in
circumstances of imminent danger to his health or life, or if
reasonable
cause exists to believe that a child is abused or
neglected." State
brief dated 9/20/91, p. 9. The State also
asserted that under section
169-C:16, "the court is allowed, and is
encouraged to maintain the child
in his or her own home." Id.
Discussion
Below, we discuss first the State's argument that the NPT orders
showed
that the requisite judicial determinations were made. We then
discuss
the State's argument that these determinations were required by
State
law to be made before the child could be removed from home.
NPT Orders
We note at the outset that, although the report on ACF's review
indicated
that approximately 112 NPT orders were issued to supplement
the original
court orders questioned in this case and the State
contested about 60
payments, the State submitted for the record in this
appeal NPT orders
pertaining to only 23 children. See State ex. 7,
State ex. 8, and
ACF ex. 3. Moreover, there is insufficient information
in the record to
match the NPT orders provided here to the sample
payments reviewed by ACF.
Thus, even if the NPT orders provided by the
State established that the
requisite judicial determinations were made
in the case of the children who
are the subject of those orders, there
would still be no basis on the.present
record for reversing any specific
portion of the disallowance.
Nevertheless, since information not in the record might establish that
the
NPT orders provided by the State are related to some of the sample
payments,
we proceed to consider whether these NPT orders show that the
requisite
judicial determinations were made. The Board has previously
considered
the use of NPT orders to show that "contrary to the welfare"
and "reasonable
efforts" determinations were made by the court at the
time of the child's
removal from home. In both Nebraska Dept. of Social
Services, DAB No.
1250 (1991), and West Virginia Dept. of Health and
Human Resources, DAB No.
1257 (1991), the Board found that the NPT
orders obtained by the state were
not sufficient to establish that these
determinations were made in the
absence of evidence to corroborate that
the determinations were made at the
time of the original order. The
Board explained the standard it applied
in making this finding as
follows:
Under the Act, title IV-E benefits are available
only for a child
removed from the home as a result
of a judicial determination that
continued residence in the home would be
contrary to the welfare of the
child, and, for children removed beginning
October 1, 1983, that
reasonable efforts to prevent the child's removal have
been made. Thus,
these judicial determinations must have been made at
the time of the
child's removal. The original court order, issued at
the time of the
child's removal, will obviously be the most persuasive
evidence about
whether a determination was made at that time. In those
instances where
the original order does not refer to the necessary
determinations, a
question would reasonably be raised as to whether the
requisite judicial
determinations were in fact made. Ordinarily, any
material finding made
by a court would be reflected in the court's order
issued at the time.
Indeed, the State had a financial incentive here to
inform its judges
that unless they made the determinations required by
section 472 and
reflected them in their orders, federal funding would be in
jeopardy.
Thus, a NPT order is acceptable only if it is clearly shown to have
been
issued to correct a mistake in the original order rather than to
add
findings not previously made, even if those findings could have
been
made based on the circumstances in a particular case.
West Virginia, supra, p. 16 (emphasis in original); see also,
Nebraska,
supra, pp. 8-9. As this discussion.indicates, based on the
requirement
in the statute that the requisite judicial determinations be made
at the
time of the child's removal, the State should have known that it
would
need to document that any such determination not reflected in
the
original order was in fact made. Moreover, general notice that a
state
has the burden of documenting its claims for FFP was given by 45
C.F.R.
Part 74, Subpart H. Thus, we find no merit in the State's argument
that
these limitations were unfairly applied because ACF did not
specifically
require corroboration that the requisite determinations were
actually
made when the original orders were issued until it issued
ACYF-IM-87-28
and ACYF-IM-89-08 (dated after the original orders in question
here). In
addition, we find nothing in the language of ACYF-PA-84-1
which
indicates that, if an original order did not on its face reflect
that
the court had made the requisite determinations, a NPT order would
be
accepted as sufficient evidence to that effect. In any event, the
State
did not specifically allege that it relied on ACYF-PA-84-1, and
indeed
admitted that there was no corroborating evidence which it
otherwise
would have obtained. 4/
Furthermore, the State's claim that it was unaware of what
determinations
were required is somewhat disingenuous since some of the
original court
orders included in the record contain a box which could
be checked to
indicate that "[a]ll reasonable efforts have been made to
prevent placement
of the child in foster care." See State ex. 8. The
fact
that this box was not checked when the judge could easily have done
so
further.undercuts the State's argument that the NPT orders merely
corrected
the original orders. 5/
We are also not persuaded that the factors cited by the State
distinguish
this case from Nebraska. There, the fact that four of the
five NPT
orders in question were issued on the same day using identical
language
raised questions about the NPT orders because it indicated that
the NPT
orders were issued at the request of the state in response to
the threat of
disallowance rather than as a bona fide effort to correct
a mistake in the
original order. 6/ Here, the majority of the NPT
orders submitted by
the State also used identical language. Moreover,
while the orders were
not all issued on the same day (something which
was unlikely given the large
number of orders and the variety of courts
involved), the orders were all
issued two or more years after the date
of the original orders. See
State ex. 8 and ACF ex. 3. In addition,
most of the orders are on a
form explaining that "[c]ompletion allows
the State of New Hampshire to
receive federal financial assistance for
children in foster care."
Thus, like the NPT orders in Nebraska, these
orders appear to have been
issued solely for the purpose of avoiding a
disallowance of title IV-E
funds.
Moreover, this case cannot be distinguished from Nebraska on the
ground
that the courts here could have made the requisite
judicial
determinations based on the information in each child's case
record.
The Board stated in Nebraska that, while the documents submitted by
the
state "conceivably . . . could have served as support in favor of
the
judicial findings required by the statute, they do not, in and
of
themselves, demonstrate that the findings were made." Nebraska,
supra,
pp. 9-10. Similarly, even if the documents furnished by the
State here
would have supported "contrary to the welfare" and "reasonable
efforts"
determinations, there is no evidence.that the courts made the
requisite
determinations based on these documents. 7/ As the Board
stated in West
Virginia, "the issue before us is not whether the court could
have made
the requisite determinations, but whether the State documented that
the
requisite determinations were in fact made, and the conditions for
title
IV-E funding met." West Virginia, supra, p. 2 (emphasis in
original).
Thus, in order for a payment to be eligible for FFP, the State
must show
that there was an independent determination by the court that it
was
contrary to the child's welfare to remain at home and (where
applicable)
that the State's efforts to prevent removal were reasonable.
Finally, we find that State law did not limit the use of NPT orders
to
supplying for the record something that has actually occurred but
was
omitted from the record. The State itself cited both New
Hampshire
Practice Section 1866, which pertains to the court's power "To
Correct
Errors" and Section 1867, which pertains to the court's power "To
Change
the Intended Judgment." See State's ex. 5. While section
1867 limits
the circumstances under which an order changing the intended
judgment
can be issued by requiring that "injustice be clearly shown
before
making such an order," this section still authorizes the issuance of
an
order which makes a determination not previously made. There is
no
assurance that the NPT orders in question here were not issued
pursuant
to this authority rather than section 1866.
Accordingly, we conclude that the NPT orders did not establish that
the
courts made "contrary to the welfare" or "reasonable
efforts"
determinations at the time the children at issue were removed from
home,
as required by the Act.
State Law
As noted above, ACF policy permits acceptance of an original court
order
as meeting the requirements for a.judicial determination where (1)
a
state shows there is a "clear and unequivocal" state law
permitting
removal only where the findings required by section 472 of the Act
have
been made and (2) the court order is "expressly based on that
law."
ACYF-PIQ-86-02, supra, p. 3. We are not persuaded that this
standard
was met, however, since the sections cited by the State do not
clearly
and unequivocally permit removal only where the court has found that
it
is contrary to the child's welfare to remain at home and that
reasonable
efforts have been made to prevent the child's removal from
home.
Section 169-C:16 permits removal if the court finds either that
the
child's circumstances or surroundings present an imminent danger to
the
child's health or life or that there is reasonable cause to believe
that
the child is abused or neglected; however, the court may permit
the
child to remain at home even if it makes one of these findings.
8/
Thus, neither finding can properly be viewed as equivalent to
a
determination that it is contrary to the child's welfare to remain
at
home. Furthermore, even if State law had required that the child
be
removed from home in any case where the court found that the child
was
in imminent danger, this would not satisfy the requirement for
a
reasonable efforts determination. As the Board stated in West
Virginia,
"[t]hat requirement is met only if the court explicitly stated a
finding
to the effect that reasonable efforts had been made or that the lack
of
such efforts was reasonable due to emergency circumstances
where
immediate removal was necessary to protect the child." West
Virginia,
supra, p. 12.
Furthermore, in requiring that the court make a reasonable
efforts
determination, section 472 contemplates that the court find that
the
State agency has made reasonable efforts to prevent the child's
removal.
Thus, contrary to the State's suggestion, it does not logically
follow
from the fact that the court may permit the child to remain at
home
that, if the court.instead orders the child's removal, a
"reasonable
efforts" determination has been made. 9/
Since neither section 169-C:15 nor section 169-C:16 unambiguously
permit
removal only if the requisite judicial determinations have been made,
we
need not determine whether the original court orders were
issued
pursuant to these provisions. We note in any event that none of
the
orders expressly cite to either of these provisions. While some of
the
original orders are forms containing boxes which reflect
these
provisions, (i.e., by referring to imminent danger and probable
cause),
on some of the forms neither of these boxes is checked. See
State ex.
8.
Accordingly, we conclude that the original court orders were not
issued
pursuant to a State law which permitted removal only if the
requisite
determinations had been made.
Conclusion
For the foregoing reasons, we uphold the disallowance in full.
_____________________________ Cecilia Sparks
Ford
_____________________________ Norval D. (John) Settle
_____________________________ Judith A. Ballard
Presiding Board
Member.1. The State was unable
to identify the precise amount in
dispute; however,
ACF indicated that it could do so following the
issuance of the
decision. The State estimated the amount to be
approximately
$95,000.
2. Nunc pro tunc literally means "now for then."
3. This resulted in fewer than 121 erroneous payments since a case
in
which the court order did not contain either a "reasonable
efforts"
determination or a "contrary to the welfare" determination was
counted
as two errors but constituted only one erroneous payment.
Moreover, the
State only contested payments which ACF found unacceptable
solely on
these grounds (about 60 payments).
4. The State also contended that a memorandum addressed to the
Regional
Administrators of HDS, dated October 10, 1986, authorized the use of
NPT
orders without corroborating evidence. However, the memorandum
states
that a NPT order may be obtained only if the original order "contained
a
clerical error or omission, or did not truly reflect the findings
and
intent of the court . . . ." State ex. 1. While the
memorandum does
not specifically refer to corroborating evidence, it seems
clear that
the "findings and intent of the court," if not apparent on the
face of
the original order, could not be established without such
evidence. In
effect, ACF's later memoranda (ACYF-IM-87-28 and
ACYF-IM-89-08) simply
require evidence to corroborate that a NPT order is the
type of NPT
order described in the 1986 memorandum.
5. In addition, a few of the NPT orders state that "[t]he Court
makes
the following findings, based on documentation contained in the
Court's
record of this case . . . ." See State ex. 8. This could be
read as an
admission that the findings in the NPT order were not made at the
time
of the original court order.
6. Contrary to the State's suggestion here, the Board viewed the
fact
that four of the five NPT orders in Nebraska were issued by the
same
judge as a factor which supported the validity of the NPT orders
because
the judge had presided over the initial hearing in each case.
See
Nebraska, pp. 6, 10.
7. Moreover, we see no basis for the State's allegation that
ACF's
review report found that the courts would necessarily have made
the
requisite determinations if they had considered the
information
presented to them. Instead, the review report found that,
while the
information was presented to the court, the State had not verified
that
the information "was considered by the court or that the judge used
it
to make a determination." Letter from Horn to Bird dated
7/15/91,
enclosure, p. 6.
8. Section 169-C:6 provides that a police or juvenile services
officer
may take a child into protective custody if the child's health or
life
is in imminent danger, and requires that a court hold a hearing on
the
matter within 24 hours (excluding weekends and holidays). However,
even
if the court ratifies the emergency removal, it could still decide
not
to place the child in foster care.
9. The State also contended that two State judicial decisions
showed
that "[t]he spirit and intent of the judicial determinations required
in
the Act, are in fact a part of New Hampshire law." State brief
dated
9/20/91, pp. 9-10. The State did not contend that these
decisions
permitted the child's removal only if the judicial
determinations
required by the Act were made, however.