Family Gets Adoption Subsidy, Attorney’s Fees

Deborah Elkins//November 30, 2012

Family Gets Adoption Subsidy, Attorney’s Fees

Deborah Elkins//November 30, 2012

An Augusta County Circuit Court overturns a state agency’s denial of an adoption assistance subsidy to a family that took in an infant, with the intent to adopt him, but who were stymied by the agency’s decision that the family could not seek a subsidy after the child became eligible for adoption because the child was not a “special needs” child at the time of his placement.

The purpose of adoption assistance is to facilitate adoptive placements and ensure permanency for children with special needs. Factors considered in the “special needs” determination include a physical, mental or emotional condition existing prior to adoption; hereditary, tendency, congenital problem or birth injury leading to substantial risk of future disability; or the individual circumstances of the child, including age, racial or ethnic background or close relationship with one or more siblings.

When a child has developed significant emotional ties with his foster parents while in their care and the foster parents wish to adopt the child, the requirement for reasonable efforts to place the child in a home without adoption assistance may be waived.

Here, the child “Juan” seems to have met all the basic eligibility requirements for adoption assistance under 22 VAC § 40-260-20B.1 and neither party appears to dispute this conclusion. However, under the statutory framework, a child must also be deemed to have “special needs” in order to receive an adoption assistance subsidy.

At the heart of this case is an issue that is summarized by the prospective adoptive parents, the Colavitas, in which they essentially charge that the Commonwealth Department of Social Services (SVDSS) prematurely determined, just days or weeks after Juan’s birth, that Juan was not eligible for a subsidy. According to the Colavitas, the agency’s own policy indicates that the first step in determining whether a child is one with “special needs” is finding that the child is legally free for adoption through the termination of all parental rights. The Colavitas argue that SVDSS erred by making the determination prematurely, prior to Juan being “legally free for adoption,” and that the hearing officer erred in affirming the SVDSS’s action in this regard.

SVDSS argues that, from the very beginning of Juan’s placement with the Colavitas, it was understood to be a prospective adoptive placement, so that agency personnel said it was appropriate to make a determination regarding eligibility for adoption assistance at the time of placement. The agency also argued that because it discussed this determination with the Colavitas from the time of Juan’s placement, SVDSS was entitled later to rely on eligibility criteria as they existed at the time of that initial discussion rather than the time of the official eligibility inquiry. Consequently, SVDSS concluded that Juan did not have “significant emotional ties” with the Colavitas when completing the form in July 2010 because no such ties existed in the 30 days or so after placement.

This court agrees with the Colavitas that the hearing officer erred in affirming the SVDSS decision to deny an adoption subsidy for Juan, because it was inappropriate for the SVDSS to rely on their initial eligibility determination (when Juan was only days or weeks old) in order to deny Juan’s eligibility for a subsidy after he officially became eligible for adoption.

I find no statute or regulation that would preclude the agency from determining a child’s eligibility for adoption assistance at any time. Virginia Code § 63.2-1303 mandates that the agency must determine eligibility in response to an application, but does not necessarily preclude that agency from determining eligibility at other times or on its own accord.

Nevertheless, I find that an eligibility determination prior to the termination of parental rights – and thus prior to the child being legally free for adoption – is inappropriate. By making the eligibility determination prior to Juan’s being “free for adoption,” the SVDSS contravened its own regulations and policy guidance and, in effect, ensured that Juan would not be eligible. This court finds it is contrary to the intent and purpose of the policy to allow the agency to conclusively determine a child’s eligibility for adoption assistance prior to that child’s being eligible for adoption.

By making the eligibility determination at a point when Juan categorically could not have qualified for a subsidy, the SVDSS created a circumstance in which the Colavitas’ mere acceptance of Juan into their home undercut their subsequent efforts to appeal the eligibility determination.

The hearing officer determined Juan was not hard to place due to any special need. This finding, however, is contrary to law and does not have substantial evidentiary support. Testimony from two agency employees who offered their views that Juan could have been placed in a home without a subsidy is insufficient to overcome the stark fact that Juan, by virtue of his minority status (and perhaps by other factors as well, such as his birth mother’s history of mental illness and possible use of drugs and alcohol during pregnancy) possesses a characteristic that is sufficient under the law to demonstrate that he has “special needs.” Neither the law nor DSS’s policy standards regard such subjective impressions as dispositive or even relevant.

The exception under § 40-260-20B.2.c.(1) applied to Juan. That is, Juan had developed significant emotional ties with his foster family, thereby relieving DSS of the regulatory necessity of searching for a family who would adopt Juan without a subsidy.

This court finds the hearing officer erred in affirming SVDSS’s decision that Juan is not eligible for adoption assistance. As of July 2010, when Juan’s eligibility was officially determined, he met both the basic eligibility requirements and the special needs criteria, as set out by the Virginia Code, DSS regulations and DSS policy as expressed in the DSS Adoption Manual and Adoption Assistance Eligibility Form. The court also finds the Colavitas are entitled to recover their reasonable costs and attorney’s fees.

Colavita v. Commonwealth Dep’t of Social Services (Ludwig) No. CL 11000486-00, March 8, 2012; 25th Judicial Cir.; Paul A. Dryer for petitioner; Donald G. Powers, Office of the AG. VLW 012-8-191, 14 pp.


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