       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 10, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1176
                         Lower Tribunal No. 15F-6191
                             ________________


                              Colesha Cormier,
                                    Appellant,

                                        vs.

         Florida Department of Children and Families, et al.,
                                    Appellees.



     An Appeal from the Florida Department of Children and Families.

     University of Miami School of Law Children & Youth Law Clinic, and Kele
Stewart, and Frank Florio, Certified Legal Intern, for appellant.

      Pamela Jo Bondi, Attorney General, and Jacqueline I. Kurland (Fort
Lauderdale), Assistant Attorney General, for appellee Florida Department of
Children and Families; Paula Herron, for appellee Our Kids of Miami-
Dade/Monroe, Inc.


Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

     ROTHENBERG, J.
      Colesha Cormier (“Cormier”) appeals from the Department of Children and

Families’ (“DCF”) final agency decision sustaining the denial of her application

for Education and Training Voucher (“ETV”) benefits and argues that Florida’s

eligibility criteria for receiving ETV benefits conflicts with the John H. Chafee

Foster Care Independence Program (“the Chafee Act”), 42 U.S.C § 677, which

provides funding for state ETV programs. Because we find that Cormier’s ETV

application was properly denied under Florida law and that Florida’s ETV

eligibility requirements do not conflict with the Chafee Act, we affirm.

                                 BACKGROUND

      Cormier was born on November 11, 1995. She lived in the Bahamas with

her mother until she was fourteen years old and then moved to Florida to live with

her father. On October 2, 2013, DCF removed Cormier from her father’s care due

to alleged physical abuse and domestic violence, and thereafter, she entered the

dependency court system. Cormier was sheltered briefly and then placed into the

temporary custody of a non-relative caregiver, where she remained for

approximately six weeks before turning eighteen. As the hearing on the petition for

dependency was scheduled for a date after Cormier turned eighteen, the hearing

was never conducted and the dependency case was closed. After turning eighteen,

Cormier moved back to the Bahamas and lived with extended family for




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approximately one year, she then returned to the United States to continue her

higher education.

      In June 2015, at age nineteen and a half, Cormier applied for ETV benefits

through DCF’s contracted community based care agency, Our Kids of Miami-

Dade/Monroe, Inc. (“Our Kids”). Our Kids denied Cormier’s application because

she did not meet Florida’s ETV eligibility requirements, and thereafter, she

petitioned for a Fair Hearing before DCF to appeal the denial of her application for

ETV benefits. On April 20, 2016, DCF’s hearing officer entered a final order

denying Cormier’s petition for relief, concluding that Cormier did not meet

Florida’s eligibility requirements for ETV benefits because she was never

adjudicated dependent and did not live in foster care for six months prior to

reaching her eighteenth birthday. See Fla. Admin. Code R. 65C-31.002(9)(a).1

Cormier timely appealed.

                                   ANALYSIS

      Cormier does not contest that she does not meet the eligibility requirements

for Florida’s ETV program. Rather, Cormier contends that Florida’s eligibility

requirements conflict with the federal ETV eligibility requirements allegedly found


1 The subsequent repeal of rule 65C-31.002(9)(a) in January 2017 is of no
consequence in this case, as both parties rightly acknowledge that its repeal does
not have retroactive effect. See, e.g., Weingrad v. Miles, 29 So. 3d 406, 409 (Fla.
3d DCA 2010) (noting that without clear legislative intent to the contrary,
substantive statutory changes will not apply retroactively).

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in the Chafee Act. The textual basis for her argument is located in the following

general policy statement in the Chafee Act: “The purpose of this section is to

provide States with flexible funding that will enable programs to be designed and

conducted . . . to make available vouchers for education and training, including

postsecondary training and education, to youths who have aged out of foster care .

. . .” 42 U.S.C § 677(a)(1). Because Cormier has aged out of foster care, according

to the federal definition of “foster care,”2 she claims that she is eligible for ETV

benefits under federal law and that the more narrowly drawn Florida eligibility

requirements are invalid under the Supremacy Clause of the United States

Constitution. Townsend v. Swank, 404 U.S. 282, 286 (1971) (holding that “a state

eligibility standard that excludes persons eligible for assistance, under federal

AFDC standards violates the Social Security Act and is therefore invalid under the

Supremacy Clause”).

      The flaw in Cormier’s argument is that she treats purposive language in the

Chafee Act as imposing mandatory eligibility requirements on the states. In Quern

v. Mandley, 436 U.S. 725, 733 (1978), the United States Supreme Court

considered, inter alia, whether a state that adopts a program for Emergency

Assistance to Needy Families with Children (“EA”) may limit eligibility to receive


2 “Foster care means 24-hour substitute care for children placed away from their
parents or guardians and for whom the title IV-E agency has placement and care
responsibility.” 45 CFR § 1355.20.

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funds under the program more narrowly than the federal EA statute. The Court

noted the general principles that each state is free to set its own monetary standard

of need and level of benefits, but that the states are not free to narrow the federal

standards that define the categories of people eligible for aid. Id. at 740. However,

the Court then analyzed the text of the federal statute authorizing EA funding to

states, and specifically looked for language that made eligibility criteria in the

federal act mandatory on participating states. Id. at 743. The Court concluded, with

regard to the federal EA statute, that “[t]here is no statutory language . . . that can

reasonably be understood as imposing uniform standards of eligibility on every

state EA program.” Id. In the absence of such mandatory language, the Court held

that states are permitted to implement the federal EA funds through their own

programs with eligibility requirements that are narrower than the general federal

definitions setting forth the permissible scope of the federal EA program.

      Here, the Chafee Act does not impose mandatory ETV eligibility

requirements on states, but instead permits states to develop their own eligibility

criteria. The purpose of the Chafee Act “is to provide States with flexible funding

that will enable programs to be designed and conducted” so as to help foster

children who have aged out of the foster care system to make the transition to self-

sufficiency. 42 U.S.C § 677(a). However, the Chafee Act explicitly provides that a

state’s plan will only be approved if it uses “objective criteria for determining



                                          5
eligibility for benefits and services under the programs, and for ensuring fair and

equitable treatment of benefit recipients.” 42 U.S.C. § 677(b)(2)(E). Thus,

Congress expressly intended for states, not the federal government, to design and

develop eligibility criteria. As an added safeguard, Congress requires that in order

to receive funding under the Chafee Act, a state must submit a plan to and receive

approval from the Department of Health and Human Services, the federal agency

tasked with ensuring that a state’s plan meets the requirements and furthers the

objectives of the Chafee Act. See 42 U.S.C § 677(b)(1). Therefore, Florida is free

to craft its own eligibility criteria, with the approval of the Department of Health

and Human Services, that are reasonably calculated to help foster children

transition to self-sufficiency after aging out of foster care. 42 U.S.C § 677(d)

(declaring that after a state receives federal funding under the Chafee Act, the state

“may use the amount in any manner that is reasonably calculated to

accomplish the purposes of [the Chafee Act]”) (emphasis added).

      Florida’s ETV eligibility criteria stem from the plan it submitted to the

Department of Health and Human Services for funding under the Chafee Act.

Florida’s plan, called the Child and Family Services Plan 2015-2019 (“CFSP”),

was approved by the Department of Health and Human Services. Among other

things, Florida’ CFSP requires an applicant for ETV benefits to have “aged out of

licensed care after having accrued a minimum of six month(s) within an out-of-



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home care setting between the ages of 0 and 17.” Florida’s Child and Family

Services Plan 2015-2019, Ch. XV, p. 19; see also Rule 65C-31.002(9)(a). We, like

the federal government, find no conflict between this ETV eligibility requirement

and the Chafee Act.

                                CONCLUSION

      In summary, Cormier has not demonstrated that the text of the Chafee Act

includes mandatory ETV eligibility requirements that Florida must implement in

its ETV program. Therefore, we find that the Chafee Act and Florida’s ETV

program do not conflict. We also find that the hearing officer correctly applied

Florida’ ETV eligibility requirements, and thus, we affirm. We find that Cormier’s

remaining arguments on appeal are without merit, and thus, we decline to discuss

them further.

      Affirmed.




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