Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Pennsylvania Department of Public Welfare
DATE: February 23, 1993
Docket No. A-91-65
Decision No. 1392
DECISION
The Pennsylvania Department of Public Welfare (Pennsylvania) appealed
a
determination by the Administration for Children and Families
(ACF)
disallowing $5,146,935 in federal financial participation (FFP)
claimed
by Pennsylvania under title IV-E of the Social Security Act (Act).
1/
The disallowed funding was claimed for foster care maintenance
payments
made by Philadelphia County (Philadelphia) in fiscal year
1987. ACF
found that certain sampled payments made by Philadelphia in
that period
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
made. Pennsylvania disputed ACF's findings of ineligibility
for 60 out
of a total of 266 sample payments. (Pennsylvania did not
challenge the
statistical sampling methodology used by ACF, however.
Pennsylvania's
brief dated 1/13/92, at 2.) During the proceedings
before the Board,
the number of disputed cases was reduced to 50 since
Pennsylvania
conceded that four of these payments (sample nos. 9, 73, 188 and
233)
were ineligible as found by ACF, while ACF conceded that six
payments
(sample nos. 57, 69, 149, 195, 224 and 231) contested by
Pennsylvania
were eligible.
The principal issues raised by the appeal are (1) whether ACF
properly
found that certain children were removed from their homes pursuant
to
voluntary placement agreements (VPAs) within the meaning of
section
472(a)(1) of the Act and thus were ineligible for title IV-E
funding
because Pennsylvania's title IV-E plan did not provide for payments
to
such children; and (2) whether ACF properly found that, in
issuing
orders removing certain children from home, the court did not make
the
determination required by section 472(a)(1) of the Act that it
was
contrary to the child's welfare to remain in the home.
For the reasons discussed below, we conclude that, in the one case
(sample
no. 155) in which the VPA issue was the sole basis for ACF's
finding of
ineligibility, the child was not removed "pursuant to a
voluntary placement
agreement" within the meaning of the Act, although
she was initially removed
voluntarily from her home. Furthermore, we
affirm ACF's finding that
the court did not make the requisite "contrary
to the welfare" determinations
when it issued the removal orders, in all
cases found ineligible by ACF on
this basis. In addition, we conclude
that ACF correctly found that all
of the remaining cases disputed by
Pennsylvania were ineligible on some other
ground. Accordingly, we
uphold the disallowance in the amount
attributable to 49 of the 50
disputed payments, and reverse the disallowance
in the amount
attributable to the payment in sample no. 155.
Below, we first describe the relevant statutory authority for the
title
IV-E program. We proceed to discuss the two principal issues
identified
above, and finally discuss the remaining issues in the case.
Relevant Statutory Authority
Under title IV-E of the Act, federal funding is available for foster
care
maintenance payments for a child removed from the home of a
relative if
certain requirements are met. Under section 472(a)(1), the
child's
removal from home must be --
pursuant to a voluntary placement agreement entered into by
the
child's parent or legal guardian, or . . . 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) requires that 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 requirement for a judicial determination to the effect
that
continuation of the child in the home would be "contrary to the
welfare
of such child" was continued from the foster care program
previously
funded under title IV-A of the Act. The "reasonable
efforts"
requirement was added when the 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. (The reasonable efforts requirement was
not
effective until October 1, 1983, however.) The provisions relating
to
funding for a child removed from home pursuant to a VPA were also
added
by Public Law 96-272. Prior to the enactment of Public Law
96-272,
funding was available only for children removed pursuant to a
judicial
determination.
Public Law 96-272 also provides for title IV-E funding for
children
removed voluntarily under certain limited circumstances.
Section
102(d)(1) of Public Law 96-272, which was not codified as part of
title
IV-E, provides:
For purposes of section 472 of the Social Security Act, a
child
who was voluntarily removed from the home of a relative and
who
had a judicial determination prior to October 1, 1978 to
the
effect that continuation therein would be contrary to
the
welfare of such child, shall be deemed to have been so
removed
as a result of such judicial determination. . . .
A state wishing to claim title IV-E funding for children removed from
home
pursuant to a VPA must provide in its title IV-E plan that payments
will be
made on behalf of such children. Sections 471(a)(1) and
472(a)(1) of
the Act.
Section 472(f) of the Act defines the term "voluntary placement" as--
an out-of-home placement of a minor, by or with participation
of
a State agency, after the parents or guardians of the minor
have
requested the assistance of the agency and signed a
voluntary
placement agreement.
The same section also defines the term "voluntary placement agreement"
as
--
a written agreement binding on the parties to the
agreement,
between the State agency, any other agency acting on its
behalf,
and the parents or guardians of a minor child which
specifies,
at a minimum, the legal status of the child and the rights
and
obligations of the parents or guardians, the child, and
the
agency while the child is in placement.
Finally, section 472(e) prohibits federal funding for foster
care
maintenance payments --
in the case of any child who was removed from his or her
home
pursuant to a voluntary placement agreement . . . and
has
remained in voluntary placement for a period in excess of
180
days, unless there has been a judicial determination by a
court
of competent jurisdiction (within the first 180 days of
such
placement) to the effect that such placement is in the
best
interests of the child.
Removal Pursuant to VPAs or Court Orders
ACF found multiple payments ineligible on the ground that the
children
were removed from their homes pursuant to VPAs and that
Pennsylvania's
title IV-E plan in effect during the fiscal year in question
here did
not authorize payments for such children. 2/ Pennsylvania did
not
dispute that its title IV-E plan for the relevant period did
not
authorize payments for children removed pursuant to VPAs, nor
did
Pennsylvania dispute that there were nominally VPAs in these
cases.
However, Pennsylvania took the position that the children were
not
removed pursuant to VPAs but by later judicial determinations and
were
therefore covered by its title IV-E plan.
According to Pennsylvania, Philadelphia removed the children from
their
homes using a "hybrid system" of VPAs and court orders in which the
VPAs
were "ancillary" to the court order process and functioned merely
to
insulate Philadelphia from civil liability for the child's
removal
pending issuance of the court order. Pennsylvania brief dated
1/13/92
at 3. Pennsylvania asserted that when Philadelphia wished to
remove a
child from home, it asked the parents to sign a VPA which was
effective
for only 30 days, in accordance with state regulations issued
October 9,
1982 providing that "[p]lacement of a child may not extend beyond
30
days unless a court order has been entered pursuant to the Juvenile
Act
. . . ." Pennsylvania Appeal File (A.F.) Exhibit (Ex.) 4, at
4-1-1.
Pennsylvania further asserted that, contemporaneously with the
execution
of a VPA, the social worker prepared a worksheet and referred the
case
to the court unit. According to Pennsylvania, a petition for a
hearing
was then filed by the court unit and a hearing before the court
was
scheduled, usually for a date within 30 days of the date of the
child's
physical removal from home.
Pennsylvania asserted that, under its system, the court order was the
only
legal authority for a child's placement beyond 30 days. 3/ Thus,
in
Pennsylvania's view, the children should be considered as having been
removed
from their homes pursuant to a judicial determination
notwithstanding the
earlier VPA. Pennsylvania stated that, consistent
with this view of the
case, it had claimed federal funding only from the
date of the court
order.
As indicated previously, there is only one case (sample no. 155) in
which
the VPA issue is dispositive. We conclude that, under the system
used
by Philadelphia, this child, although initially removed voluntarily
from her
home, was nevertheless removed as the result of a judicial
determination,
within the meaning of section 472(a)(1) of the Act. Our
conclusion
rests primarily upon the following factors:
o Although the child was initially
removed from home pursuant to
what was nominally a
VPA, that document was not the type of VPA
contemplated by the Act. Section 472(e) of the Act
contemplates
that a VPA may substitute for a
judicial determination removing a
child for up to
180 days, at which time a court order is required
to
continue the child in placement. In contrast, here the
VPA
expressly stated, in accordance with the
applicable state
regulation, that it was "valid only
for thirty days from the date
of placement" and was
not renewable. A.F. Ex. 11, at 11-18-2
(emphasis in original). The VPA also provided that
the
Philadelphia Department of Public Welfare would
file a petition for
a court order within 24 hours of
the placement date (id. at
11-18-3), and stated that
"[i]f the child is still in care as of
the 30th day,
the court hearing will be held on day 31." Id.
at
11-18-2. Thus, Pennsylvania viewed the VPA
as only an interim
measure prior to issuance of a
court order no later than 31 days
from the date of
placement. 4/
o The court order in this case contains
express determinations
that continuation in the home
would be contrary to the child's
welfare and that
reasonable efforts to keep the child in the home
were not possible due to the emergency nature of the placement.
5/
A.F. Ex. 11, at 11-18-7. Thus, the order
satisfied the
requirements in section 472(a)(1) of
the Act for a judicial
determination removing the
child from home. As noted above,
section
472(e) of the Act requires that, in those cases where
a
child has been removed pursuant to a VPA rather
than a court order,
a court order be issued within
180 days of a child's placement in
order to continue
the placement. However, that order need only
contain a determination that placement is in the child's
best
interests, a determination which ACF has deemed
tantamount to a
contrary to the welfare
determination. 6/ The fact that a
reasonable
efforts determination was also made in this case
indicates that Philadelphia did not intend to comply with
section
472(e) but rather with section
472(a)(1).
o The court order was issued within six months
of the child's
physical removal from home. ACF
acknowledged that the judicial
determination
required by section 472(a)(1) is timely if the
petition for the order is filed within six months of the
child's
physical removal from the home.
Transcript of 8/24/92 hearing
(Tr.) at 149,
153. Here, the court order itself was issued
less
than two months after the child was removed
from home. Thus, there
was a judicial
determination in this case which fully satisfied the
requirements of section 472(a)(1).
o Consistent with its view that the VPA was
merely an interim
measure prior to the issuance of a
court order, Pennsylvania
claimed FFP only in
payments made for the child following the
issuance
of the court order.
ACF did not advance any reason, nor can we find any, why the denial of
FFP
under these circumstances would further the purposes of the Act.
Thus, ACF's
determination simply penalizes Pennsylvania for having an
interim measure
prior to the issuance of a court order which met the
requirements of section
472(a)(1) of the Act.
ACF asserted, however, that section 472(a) of the Act "gave
Pennsylvania
full notice that removals pursuant to voluntary placement
agreements and
those resulting from judicial determinations were separate
and
distinct." ACF brief dated 11/16/92 at 5-6. ACF argued that
there was
"nothing in the statute that indicates that a voluntary removal
can
later be `converted' into a judicial removal" for purposes of title
IV-E
funding. Id. at 6. However, Pennsylvania did not contend
that a
voluntary removal was converted into a judicial removal, but rather
that
the VPA was an integral part of the process leading to the issuance of
a
court order removing the child. As just discussed, the court order
did
not simply affirm the VPA; it made the affirmative findings required
by
the Act for a court-ordered removal.
ACF also contended that, in arguing that its system was used to
insulate
Philadelphia from civil liability pending the issuance of a court
order,
Pennsylvania in effect admitted that at the time the children
were
removed from their homes, the only legal basis for that removal was
the
VPA. ACF asserted that the court orders provided a legal basis
for
continuing the children in their placements after the 30-day
VPAs
expired, and did not alter the fact that the VPAs were the legal
basis
for removing the children from their homes. This argument ignores
the
fact that the order in sample no. 155 did not expressly approve
the
child's continued placement pursuant to the VPA. Indeed, the VPA
was no
longer the authority for the child's placement at the time the order
was
issued because the VPA had expired. Moreover, once the VPA expired,
the
terms of the placement were no longer those agreed to in the VPA
but
rather those specified in the order. 7/ Accordingly, the order
cannot
reasonably be viewed as continuing the placement made by the VPA.
ACF argued further that this case could not properly be viewed
as
involving a removal pursuant to a judicial determination
because
Pennsylvania law provides specific procedures for
court-ordered
placements which were not followed in this case. ACF
cited in
particular the requirements at Pa.C.S. .. 6331, 6332, 6335, and
6341
that a petition be filed with the court within 24 hours after the
child
is placed in shelter care, that a detention hearing be held within
72
hours after such placement, and that a hearing to adjudicate the
child's
dependency be held within 10 days of the filing of the petition,
with
another hearing to place the child in foster care within 20 days
(if
this was not done at the dependency hearing). Pennsylvania
responded
that the procedures referred to by ACF applied only to
emergency
placements and not to this case. However, sample no. 155
involves an
emergency placement since the court order states that reasonable
efforts
were not made to prevent the child's removal because of "the
emergency
nature of the placement." A.F. Ex. 11, at
11-18-7. Nevertheless, the
fact that Pennsylvania may not have followed
mandated State procedures
for emergency placements does not undercut a
determination that the
court order was sufficient for purposes of the federal
program
requirements at issue. 8/
ACF argued in addition that the Board had decided the issue presented
here
in its favor in DAB No. 1278. ACF cited the Board's statement in
that
decision to the effect that the only basis for title IV-E funding
for
children removed from home pursuant to a VPA before such funding
was
authorized by law and included in a state's title IV-E plan was
section
102(d)(1) of Public Law 96-262. This section, which
specifically
provides for funding in the case of such children if a court
made a
contrary to the welfare determination prior to October 1, 1978, does
not
apply to sample no. 155, in which the court order was issued in
1987.
See A.F. Ex. 11, at 11-18-7. Nevertheless, DAB No. 1278 is
not
dispositive here. As the Board noted in its Ruling on Request
for
Hearing dated 6/19/92, the Board's statement in DAB No. 1278 was made
in
the face of Pennsylvania's concession that the specific case in
dispute
was ineligible and without the benefit of Pennsylvania's arguments
on
this issue. Pennsylvania did not argue in DAB No. 1278, as it did
here,
that the VPA was an intermediate step in the process of the
child's
removal by court order.
Accordingly, we conclude that Pennsylvania's claim for federal
funding
related to foster care maintenance payments made for the child in
sample
no. 155 following the issuance of the court order was proper. 9/
Contrary to the Welfare Determinations
ACF found most of the payments raising the VPA issue, as well as
other
payments, ineligible on the ground that, in issuing the orders
removing
the children from their homes, the court did not make a
determination
that continuation in the home was contrary to the child's
welfare, as
required by section 472 of the Act. 10/
Pennsylvania admitted that the orders did not contain express contrary
to
the welfare determinations. However, Pennsylvania argued with
respect
to most of the cases that the requisite determination was made
because, in
issuing the removal order, the court relied on one of
several provisions of
Pennsylvania's Juvenile Act which Pennsylvania
said permitted a child's
removal from home only if the court determined
that removal from home was in
the child's best interest. Pennsylvania
cited 42 Pa.C.S. . 6351 (1982)
or the version of this provision enacted
in 1972 as the applicable provision
in most cases. For those cases in
which the order was issued prior to
1972, Pennsylvania cited 11 Pa.C.S.
. 250. In addition, for those cases
in which a temporary restraining
order rather than an order of disposition
placing the child was issued,
Pennsylvania cited 42 Pa.C.S. . 6325.
As discussed below, we conclude that two of the applicable provisions
did
not clearly require a contrary to the welfare determination. We
further
conclude that there is insufficient evidence that the court
relied on the
other provision in issuing the orders in question.
Accordingly, we reject
Pennsylvania's argument that contrary to the
welfare determinations were made
notwithstanding the lack of an express
determination in the orders.
This Board has previously considered the question of how a state
may
establish that the judicial determination required by section 472 of
the
Act has been made in the absence of any language in the court
order
itself which satisfies the statutory requirements. See, e.g.,
Georgia
Dept. of Human Resources, DAB No. 1355 (1992); West Virginia Dept.
of
Health and Human Services, DAB No. 1257 (1991). The Board noted
in
those decisions that ACF policy, set out in ACYF-PIQ-86-02, dated May
8,
1986, provided that a state could establish that the
requisite
determination was made by showing that the court order was
"expressly
based" on a "clear and unequivocal State law" which "requires
that
removal may only be based on a determination that remaining in the
home
would be contrary to the child's welfare." (Emphasis in
original.) The
Board found in DAB No. 1257 that a court order could be
"expressly
based" on a state law within the meaning of ACYF-PIQ-86-02 even if
it
did not specifically cite the state law, as long as there was
other
evidence in the order that the court intended to rely on that law.
ACF did not dispute that 42 Pa.C.S. . 6351 in effect required that
the
court make a contrary to the welfare determination in order to remove
a
child from home (but, as discussed later, ACF contended that the
court
orders which Pennsylvania argued were issued in reliance on
this
provision were not "expressly based" on it). However, ACF
challenged
Pennsylvania's assertion that the other two statutory provisions
cited
by Pennsylvania required the court to make a best interest/contrary
to
the welfare determination. As discussed below, we agree with ACF
that
neither 42 Pa.C.S. . 6325 nor 11 Pa.C.S. . 250 clearly required such
a
determination.
The Board has previously held that reliance on a state statute
which
requires the court to consider the interests of others in addition
to
the interest of the child in determining whether to remove a child
from
home does not satisfy the requirement for a contrary to the
welfare
determination, which addresses only the child's welfare. DAB
No. 1257
at 42. Based on that holding, we conclude that 42 Pa.C.S. .
6325 does
not require a contrary to the welfare determination since it states
in
pertinent part that a child shall not be placed in shelter care prior
to
a hearing on the court petition unless required "to protect the
person
or property of others or of the child . . . ." ACF brief
dated
11/16/92, enclosure (emphasis added). Section 250 of 11 Pa.C.S.
states
in pertinent part that the judge shall "determine whether the
best
interests and welfare of a child and the State require the
care,
guidance and control of such child." Pennsylvania Response to
Summary
of Challenged Sample Numbers, dated 1/12/93, Ex. 2 (emphasis
added).
This provision could be read to require a balancing of the child's
and
the State's interests which would not necessarily give the
child's
interests priority. Thus, neither provision clearly requires
the court
to make a contrary to the welfare determination before removing a
child
from home. 11/
Since it is undisputed that 42 Pa.C.S. . 6351 requires a contrary to
the
welfare determination, the question remains whether the court relied
on
this provision in issuing the orders to which Pennsylvania said
it
applied. As discussed below, we conclude that the evidence offered
by
Pennsylvania does not establish the court's reliance on this
provision.
Pennsylvania contended that, in several cases, the court's reliance on
the
Juvenile Act was established by the testimony of the judge who
issued the
removal order that he made a determination that foster care
was in the best
interest of the child at the time he issued the order.
Pennsylvania further
contended that the testimony of two judges that it
was the general procedure
of the court to issue a removal order only if
the court made a best interests
determination established that such a
determination was made by any judge who
issued one of the orders in
question. See Tr. at 11-13, 70-72.
12/ Pennsylvania contended,
moreover, that the fact that the petition
in several of the cases
expressly referred to the Juvenile Act established
that the court made a
contrary to the welfare determination in those
cases. In addition,
Pennsylvania argued that it was clear from the
circumstances described
in the petition or in other documents in the child's
case record (such
as the Information for Court Hearing or the VPA) that it
was contrary to
the child's welfare to remain in the home, so that a
determination to
this effect must have been made when the order was issued,
as required
by the Juvenile Act.
Pennsylvania's reliance on the testimony of the judges is
misplaced,
however. In evaluating whether a contrary to the welfare
determination
has been made, we proceed from the premise that "a court order
would
ordinarily reflect any material findings made by the court." DAB
No.
1278 at 16. A contrary to the welfare determination could be
reflected
in a court order by use of the contrary to the welfare language (or
the
equivalent best interest language), by a citation to a state
statute
which unambiguously requires a contrary to the welfare determination,
or
by a clear indication that the court relied on such a statute, such
as
use of language which parallels the language of the statute.
The
absence of any such reference to the requisite determination in
the
orders in question here thus raises a strong presumption that such
a
determination was not made. This presumption is not overcome by
the
testimony of the judges who signed the orders because that
testimony
does not indicate that the judges specifically recalled the
individual
circumstances of the cases in question or that they could remember
that
the general procedures were in fact followed in these particular
cases.
13/ Testimony concerning procedures that were generally followed
simply
cannot establish what the Act here requires: evidence of a
specific
finding by the court following evaluation of the facts of the
individual
case. Thus, even though we accept as credible the testimony
of the
judges that they generally issued removal orders in reliance
on
provisions of the Juvenile Act requiring a contrary to the
welfare
determination, we cannot conclude based on their testimony that such
a
determination was made in the cases in question.
We note that, while in DAB No. 1278 we relied on the testimony of a
judge
to establish that a contrary to the welfare determination was
made, the case
now before us is different. In DAB No. 1278,
Pennsylvania contended
that the judge's signature on a VPA below a
pre-printed line reading
"REGISTERED IN THE COUNTY COURT OF PHILADELPHIA
JUVENILE DIVISION"
constituted a contrary to the welfare determination.
Since a VPA is defined
in section 472(f) of the Act as an agreement
"between the State agency . . .
and the parents or guardians of a minor
child," the significance of the
judge's signature on this document was
not apparent. Under these
circumstances, the Board accepted a judge's
testimony as to the meaning of
his and other judge's signatures on VPAs,
stating that "[w]hen the meaning of
a document is unclear on its face,
extrinsic evidence is properly considered
to show what was intended."
DAB No. 1278, at 15. Here, however, there
was no ambiguity in the court
orders, which were complete on their
face. Thus, unlike the situation
in DAB No. 1278, Pennsylvania relied
on the judges' testimony to
establish that the court made a contrary to the
welfare determination
despite the fact that no such determination was
reflected in the orders.
For the reasons discussed above, such testimony is
unpersuasive.
Pennsylvania's position that a contrary to the welfare determination
was
made where the petitions for the court orders expressly referred to
the
Juvenile Act is also unfounded. Some of the petitions in the cases
as
to which Pennsylvania made this argument do not in fact contain
any
mention of the Juvenile Act. See, e.g., A.F. Ex. 11, at 11-3-6
(sample
no. 31). While other petitions request that the child "be
adjudicated
(adjudged) dependent under the Juvenile Act and committed to DPW"
(see,
e.g., A.F. Ex. 11, at 11-1-6 (sample no. 11)), none of the court
orders
expressly cite the petitions or incorporate them by reference.
In the
absence of any express reference in the order to section 6351 or to
a
petition referring to this section, there is insufficient basis
for
determining that the court followed this section in issuing the
orders
in question (and thus made the findings contemplated by this
section).
It follows from this that the mere description in a petition or
other
document available to the court of circumstances based on which
the
court could have determined that it was contrary to the child's
welfare
to remain in the home is not a basis for finding that the court
made
such a determination. As ACF observed in PIQ-86-02, "the petition
which
requests a hearing could not anticipate the findings and conclusions
to
be made by the court at a time in the future and cannot be used in
lieu
of the judicial determination." ACYF-PIQ-86-02, at 5.
Furthermore, as
we observed elsewhere in this decision, the Act requires
evidence of a
specific finding by the court that continuation in the home is
contrary
to the child's welfare. ACF has given the states substantial
leeway
with respect to what constitutes adequate evidence of such a
finding.
However, for the reasons discussed above, ACF reasonably determined
that
a petition alone, regardless of its language, cannot establish that
such
a finding was made. We note, moreover, that as the connection
between
the court order and the requisite judicial determination becomes
more
attenuated, it becomes more difficult for the states and for ACF
to
monitor compliance with the Act. ACF could reasonably take this
into
account in setting the policy of what type of evidence would
be
acceptable. 14/
Pennsylvania also argued in one case (sample no. 128) that the VPA was
the
type at issue in DAB No. 1278, and that, consistent with the Board's
holding
in that decision, the judge's approval of the VPA constituted a
contrary to
the welfare determination. However, in DAB No. 1278, the
Board found
that the judge's signature on the VPA signified that he had
made a contrary
to the welfare determination. Here, in contrast, there
is no judge's
signature on the VPA. Instead, there is a notation in the
child's case
record that "[a]t a review of this placement agreement" the
judge "approved
the agreement and ordered [the Department of Public
Welfare] to file a
petition." A.F. Ex. 11, at 11-14-1 and 11-14-2.
Accordingly,
Pennsylvania's argument that sample no. 128 is controlled
by DAB No. 1278 has
no merit.
We therefore conclude that ACF correctly found that, in those cases
in
which the court order lacked an express contrary to the
welfare
determination, no such determination was made. As the Board
noted with
respect to a similar conclusion in a prior decision, this
conclusion is
not intended to indicate that the court's or the state agency's
"actions
were unsound, but simply that [the state] failed to document that
its
claims met the conditions Congress established as a prerequisite
for
Title IV-E funding." DAB No. 1355 at 10, citing DAB No.
1257.
Accordingly, title IV-E funding related to the cases which ACF
found
ineligible on this basis is not available.
Miscellaneous Issues
1. Reasonable Efforts Determination
ACF found one payment (sample no. 118) ineligible on the sole ground
that
the reasonable efforts determination required by section 472 of the
Act was
not made. 15/ In that case, the removal order was on a form
which
included boxes the judge could check if he determined that (A)
"[r]easonable
efforts were made . . . to prevent the placement of this
child," (B)
"[r]easonable efforts were not made . . . ," or (C)
"[s]ervices were not
offered in an effort to prevent the placement of
this child due to the
emergency nature of the placement . . . ." A.F.
Ex. 11, at
11-12-5. Pennsylvania relied on the testimony of the judge
who signed
the order that he had "heard facts which responded to the
question of `Were
reasonable efforts made . . . to prevent placement of
this child?'," that he
would not have signed the order if he intended to
check the second box, and
that he had probably inadvertently failed to
check another box. Tr. at
26-29.
This testimony is insufficient to establish that a reasonable
efforts
determination was made. Although the judge testified that he
heard
facts regarding whether reasonable efforts were made, he was
unable,
when asked, to testify as to the specific circumstances
which
necessitated the child's removal from home. Tr. at 26. As
indicated in
the preceding discussion of contrary to the welfare
determinations,
where the testimony of the judge does not indicate that he
specifically
recalled the individual circumstances of a case, there is no
assurance
that he made the requisite determination in that case.
Moreover, the
failure of the judge to check one of the boxes with a
pre-printed
reasonable efforts finding was obvious from the face of the
order.
Thus, it would have been a simple matter for Pennsylvania to
request
that the judge issue a corrected order before Pennsylvania
determined
the child eligible for title IV-E payments. Under these
circumstances,
it is reasonable to require that the judge's testimony reflect
his
recollection of the specific facts of the case in order to
establish
that an inadvertent error was made nearly five years before
his
testimony was given. Accordingly, we conclude that ACF correctly
found
sample no. 118 ineligible based on the lack of a reasonable
efforts
determination.
2. Unapproved Providers
ACF found two payments (sample nos. 151 and 223) ineligible on the
sole
ground that the homes in which the children were placed were
not
licensed by Pennsylvania as foster family homes or approved
by
Pennsylvania as meeting its licensing standards for foster family
homes.
Although Pennsylvania disputed ACF's finding of ineligibility,
it
acknowledged that the Board should uphold ACF's finding based on
its
holding in DAB No. 1278 that documentation similar to that submitted
by
Pennsylvania here was insufficient to establish that the homes
were
licensed or approved. Accordingly, we conclude without
further
discussion that the payments in question were ineligible. 16/
3. Mother/Child Placements
ACF also found that two payments (sample nos. 89 and 121)
were
ineligible on the ground that the children, who were placed in
foster
homes with their mothers, were not removed from the home of a
relative,
as required by section 472(a) of the Act. Pennsylvania
disputed ACF's
position that title IV-E funds were unavailable for any
children in
mother/infant placements, but acknowledged that the Board had
decided
this issue in ACF's favor in DAB No. 1278. Since Pennsylvania
did not
offer any reason why the Board should reverse its holding in DAB
No.
1278, we conclude without further discussion that the two
payments
involving this issue were ineligible.
4. Undated or Unsigned Court Orders
ACF also found several payments (sample nos. 10, 61, 68, 92, 250, and
262)
ineligible on the ground that the court order was not dated or was
not signed
by a judge or other court official. Pennsylvania
subsequently submitted
copies of the orders in some of these cases which
it contended met ACF's
objections, and argued that the orders originally
submitted in the remaining
cases were valid notwithstanding ACF's
objections. However, we do not
consider whether ACF properly found the
cases ineligible on the grounds
specified here since we uphold ACF's
findings of ineligibility in these cases
on the ground that there was no
contrary to the welfare determination.
Conclusion
Based on the foregoing, we uphold the amount of the disallowance which
is
attributable to all of the 50 payments in dispute except sample no.
155, with
respect to which we reverse the disallowance. Accordingly,
ACF should
reduce the disallowance by the amount attributable to sample
no. 155 as well
as the six other cases which ACF conceded were eligible.
___________________________ M. Terry
Johnson
___________________________ Norval
D. (John)
Settle
___________________________ Donald
F.
Garrett Presiding Board Member
1. This determination was appealed in May 1991. The Board
subsequently
granted Pennsylvania's request for a stay of proceedings pending
the
issuance of a decision in several other appeals then before the
Board.
That decision was issued on October 21, 1991 (Pennsylvania Dept.
of
Public Welfare, DAB No. 1278) and was affirmed on reconsideration
on
December 24, 1991. An appeal of DAB No. 1278 is pending in the
U.S.
District Court for the Western District of Pennsylvania (Civil
Action
No. 92-0337).
2. ACF conceded, however, that section 102(d)(1) of Public Law
96-272
authorized title IV-E payments for those children initially removed
from
their homes pursuant to VPAs where there was a petition for a
court
order approving the placement prior to October 1, 1978. ACF
conceded
that the four cases (sample nos. 57, 69, 151 and 231) which
involved
this situation should not have been found ineligible based
on
Pennsylvania's use of a VPA; however, ACF maintained, and we agree,
that
one of these cases (sample no. 151) was ineligible on the ground
that
the provider was unapproved.
3. Pennsylvania asserted that, in some cases, the court order
was
retroactive to the date of the child's actual physical removal
from
home, and argued that the order served as authority for the removal
on
that basis as well. ACF responded that Pennsylvania law did
not
authorize a court to commit a child retroactively to the state
agency.
We need not resolve this issue, however, since it involves
an
alternative argument not necessary to our conclusion and, in any
event,
the court order in sample no. 155 (the one case in which the VPA
issue
was the sole basis for ACF's finding of ineligibility) was
not
retroactive.
4. The record for sample no. 155 does not show when the petition for
a
court hearing was filed. However, the case was referred to the
court
unit two days after the child's placement for the preparation and
filing
of a petition. A.F. Ex. 11, at 11-18-4. Although a hearing
was not
held before the VPA expired as required by state regulation and
the
terms of the VPA, a hearing was held and a court order issued less
than
a month after the VPA expired. Id. at 11-18-7.
5. ACF's predecessor agency indicated in various policy issuances
that
the requirement for a reasonable efforts determination would
be
satisfied by such a determination. See ACYF-IM-85-25, dated August
14,
1985; ACYF-PA-84-1, dated January 13, 1984.
6. See ACYF-IM-85-25, dated August 14, 1985.
7. The terms of the VPA included the parent's agreement that
"[t]he
planning and return of the child shall be mutually agreed upon by
the
Philadelphia [Department of Public Welfare] Children and Youth
Agency
and me." A.F. Ex. 11, at 11-18-3.
8. A related argument advanced by ACF was that, because the
court
orders were issued without the adjudication of the child's
dependency
required by Pennsylvania law, the court orders were not effective
to
remove the children from home but "were only a ratification of
actions
already taken on an alternative legal basis," i.e., the VPA.
ACF brief
dated 11/16/92, at 5. However, ACF did not include sample no.
155 in
its list of cases for which no adjudication of dependency was
made. See
ACF's brief dated 11/16/92 at 12, n. 9.
9. This case is distinguishable from Georgia Dept. of Human
Resources,
DAB No. 1355 (1992), in which the Board found that ACF
correctly
disallowed Georgia's claim for foster care maintenance payments
made for
periods after court orders were issued in cases where children
entered
foster care through voluntary placements and Georgia did not have
an
approved state plan provision covering such placements.
Unlike
Pennsylvania, Georgia never disputed that the children's removal
from
home was pursuant to VPAs within the meaning of the Act. Moreover,
the
subsequent court orders relied on by Georgia merely ratified the
VPAs
without making the requisite findings. 10. The sample
nos. in
question are 10, 11, 31, 44, 50, 55, 61, 68, 71, 85, 86, 92, 109,
112,
115, 128, 141, 148, 152, 161, 177, 182, 190, 197, 198, 205, 206,
221,
225, 242, 246, 247, 248, 250, 253, 258, 259, and 262. In some of
these
cases, the orders which Pennsylvania submitted to establish that
a
contrary to the welfare determination was made were later determined
by
Pennsylvania not to be the original removal orders.
Although
Pennsylvania did not specifically state that the original removal
orders
might contain express contrary to the welfare determinations,
it
requested an opportunity to provide these orders after the record in
the
case had closed. The Board ruled that it was inappropriate to
re-open
the record to give Pennsylvania a further opportunity to produce
the
original removal orders in these cases since Pennsylvania had the
burden
of documenting its claims and had ample opportunity to provide
such
documentation while the record was open. Board's Ruling on Offer
of
Additional Documentation, dated 1/29/93. Accordingly, the evidence
of
record does not establish that there was a contrary to the
welfare
determination in the original removal orders in these cases.
The discussion in this section also applies to several cases (sample
nos.
20, 47, 120, 126, 135, and 217) which ACF found ineligible on the
ground that
there was no original removal order in the child's case
record.
Pennsylvania subsequently furnished orders (or documents which
it alleged
were orders) for these cases, but indicated that the cases
now raised the
issue of whether a contrary to the welfare determination
was made when the
order was issued.
11. Even if 11 Pa.C.S. . 250 is interpreted to permit a child's
removal
only if there are two separate determinations -- that removal was in
the
child's best interest and that removal was in the State's best
interest
-- it is not clear from the language of the two orders in
question
(sample nos. 10 and 205) that the court was relying on this
provision.
Although Pennsylvania asserted that the words "commit to DPW" in
the
orders paralleled the language of section 250, that section does not
in
fact specifically refer to DPW (the Department of Public Welfare).
12. A third judge testified that each judge in the court's
Family
Division, of which he was the Administrative Judge, "was
conscientious
and did do what he or she was obliged to" in issuing removal
orders.
Tr. at 66.
13. The orders preceded the testimony by a minimum of four years,
and
much longer than that in some cases.
14. ACF took the position that the court did not rely on the
Juvenile
Act in issuing the removal orders because the court did not comply
with
all of the applicable requirements in that statute, including holding
a
hearing within certain timeframes and making an adjudication
of
dependency supported by detailed findings. We need not address
ACF's
contention in view of our conclusion that there is no affirmative
basis
for finding that contrary to the welfare determinations were made.
15. Several other payments (sample nos. 31, 109, 121, 182, 248,
and
262) were also found ineligible for lack of a reasonable
efforts
determination. However, we need not reach the question whether
such a
determination was in fact made since we conclude that these
payments
were ineligible on other grounds. We nevertheless note
that
Pennsylvania argued that, even if there was no reasonable
efforts
determination in the removal order in these cases, a reasonable
efforts
determination might have been made after the issuance of the
order.
Pennsylvania pointed out that ACF policy provided that the
requirement
for a reasonable efforts determination would be satisfied if,
subsequent
to the removal order, the court determined that reasonable efforts
had
been made to reunite the child with his family. This policy is
stated
in ACYF-IM-83-25 (quoted in DAB No. 1257 at 29-30).
However,
Pennsylvania did not make this argument with respect to sample no.
118.
16. Pennsylvania conceded in addition that sample nos. 120 and
135
(which were also ineligible because the orders lacked contrary to
the
welfare determinations) were governed by the holding in DAB No.
1278
regarding unapproved providers. Pennsylvania disputed that the
holding
in DAB No. 1278 applied to sample no. 248, contending that
the
documentation it submitted to establish that the provider in this
case
was approved was different from the documentation considered in
that
decision. However, we do not address this contention since we
uphold
ACF's finding of ineligibility in this case on the ground that there
was
no contrary to the welfare