          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Blair County Children, Youth and        :
Families,                               :
                        Petitioner      :
                                        :
                  v.                    :   No. 1073 C.D. 2016
                                        :   Submitted: February 24, 2017
Department of Human Services,           :
                      Respondent        :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                        FILED: June 21, 2017


      Blair County Children, Youth and Families (BCCYF) petitions for review of
an Order of the Department of Human Services (Department), which ordered it to
pay an adoption subsidy to Ronald J. and Lori A. Kirsch (the Kirsches), who
adopted B.K. after BCCYF originally placed the child in their care. On appeal,
BCCYF argues that the Kirsches were not eligible for the subsidy because B.K.’s
placement goal was subsidized permanent legal custodianship (SPLC), not
adoption, at the time of BCCYF’s involvement and because the Kirsches did not
enter into an adoption subsidy agreement prior to the adoption being finalized, as
required by the applicable regulations. Further, BCCYF claims that no extenuating
circumstances exist that would excuse the Kirsches’ late request for the subsidy.
Lastly, BCCYF asserts that, in the event, the Kirsches are found to be entitled to a
subsidy, Cambria County is the proper county to be responsible for paying the
subsidy, as that is where the child resides and where the adoption was finalized.
Having reviewed the record, we find substantial evidence exists to support the
Department’s decision and therefore affirm.
       The parties have largely stipulated to the facts of this case. B.K. was born
February 1, 2003, to T.L.K., her biological mother, and S.W., her biological father.
She has four biological siblings and half-siblings, all of whom were previously
declared dependent in Blair County. On September 18, 2007, B.K. was also
declared dependent by the Blair County Court of Common Pleas, and BCCYF was
granted physical and legal custody. B.K. and two siblings were placed with the
Kirsches, as foster parents, on May 15, 2009, after being transferred from another
foster home. Although B.K.’s permanency goal was previously adoption, it was
changed to SPLC shortly before her placement with the Kirsches.1
       At a 38th month Permanency Review, SPLC for B.K. with the Kirsch family
was finalized, and court and BCCYF supervision ended on August 23, 2010. Prior
to the finalization of SPLC, the Kirsches entered into a subsidy agreement for
permanent legal custodianship with BCCYF. Since August 23, 2010, B.K. has




       1
          The biological mother’s parental rights were involuntarily terminated by the Blair
County Court of Common Pleas on August 31, 2009. The biological father’s parental rights, at
that time, were intact, and he still had an ongoing relationship with B.K., which is the reason
adoption was not the goal. Under Section 6351(a)(2.1) of the Juvenile Act, 42 Pa. C.S. §
6351(a)(2.1), a court can award permanent legal custody of a child to a caretaker without
terminating parental rights. In fact, the court order to this effect may include temporary
visitation rights of the parents. Id. Court intervention and supervision by a county agency ceases
once SPLC is awarded. In re S.H., 71 A.3d 973, 977 (Pa. Super. 2013).



                                                2
remained in the physical and legal custody of the Kirsches, who reside in Cambria
County.
      In February 2011, the Kirsches, through counsel, sought to terminate the
biological father’s parental rights through proceedings in Cambria County.
BCCYF was not a party to the proceeding, but a representative of BCCYF was
subpoenaed and testified at the termination hearing. Biological father’s parental
rights were terminated on September 5, 2012. Shortly thereafter, the Kirsches filed
an adoption petition in Cambria County, and Professional Family Care Services,
Inc. of Johnstown completed the required home study. On November 27, 2012, the
adoption was finalized. BCCYF did not learn of the adoption being finalized until
the spring of 2013 when it contacted the Kirsches to conduct its annual subsidy
survey related to B.K.’s SPLC. No adoption assistance agreement for B.K. was
executed prior to the adoption of B.K. being finalized.
      The Kirsches subsequently requested an adoption subsidy from BCCYF, but
the request was denied. The Kirsches then appealed to the Bureau of Hearings and
Appeals (Bureau).     Following a hearing, an administrative law judge (ALJ)
recommended the Kirsches’ appeal be denied, concluding that because B.K.’s
placement goal was SPLC at the time BCCYF’s involvement ended, BCCYF was
not obligated to advise the Kirsches about the availability of the subsidy. In
addition, the ALJ concluded that extenuating circumstances did not exist to excuse
the Kirsches’ failure to enter into an adoption subsidy agreement prior to
finalization of the adoption. Lastly, the ALJ concluded that Cambria County, not
Blair, was the correct county agency to certify the child for adoption, as that is
where the child resided and where the adoption took place. The Bureau adopted
the ALJ’s recommendation in its entirety on January 7, 2015. The Kirsches filed a



                                         3
Petition for Reconsideration, which was granted.                 Upon reconsideration, the
Department set aside the Bureau’s order that found BCCYF was not responsible
for paying the adoption subsidy. The Secretary of Human Services (Secretary)
found that BCCYF was aware of B.K.’s placement with the Kirsches, as well as
the proceedings to terminate the biological father’s parental rights. Because the
county agency has the duty to notify potential adoptive parents of the subsidy,
which BCCYF did not do, the Secretary ordered BCCYF to coordinate and provide
adoption assistance to the Kirsches. It is from this order that BCCYF appeals.2
       The adoption assistance at issue is made available to parents that adopt
special needs children through state and federal law. Section 473 of the Federal
Adoption Assistance and Child Welfare Act, 42 U.S.C. § 473, requires each state
to enact its own program to provide adoption assistance.                          In response,
Pennsylvania enacted the Adoption Opportunities Act3 with its purpose “to
encourage and 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 Adoption
Opportunities Act, 62 P.S. § 771.
       Regulations promulgated by the Department set forth a county children and
youth agency’s duties and responsibilities, as well as the eligibility requirements.

       2
          On appeal, our review is limited to determining whether the Department’s decision is
supported by substantial evidence, is in accordance with the law, or whether constitutional rights
were violated. Myers v. Dep’t of Human Servs., 141 A.3d 608, 611 n.9 (Pa. Cmwlth. 2016).
While the ALJ serves as fact-finder, and both the Department and our Court are bound by those
factual determinations, so long as they are supported by substantial evidence, neither the
Department nor this Court is bound to accept the ALJ’s conclusions of law. Lehmann v. Dep’t of
Pub. Welfare, 30 A.3d 580, 585 (Pa. Cmwlth. 2011).
        3
          Act of June 13, 1967, P.L. 31, added by Section 1 of the Act of December 30, 1974,
P.L. 1039, 62 P.S. §§ 771-774.



                                                4
First, they provide that the county agency is the “sole authority” for certifying a
child’s eligibility. 55 Pa. Code § 3140.202(a); see also Gruzinski v. Dep’t of Pub.
Welfare, 731 A.2d 246, 254 (Pa. Cmwlth. 1999) (“In Pennsylvania, the county
agency is responsible for determining the Adoption Assistance eligibility not only
for children who are in [its] care and custody, but for all children.”) (emphasis in
original). The regulations further provide that “[t]he county agency shall certify
for adoption assistance children whose placement goal is adoption” and who
meet the certain requirements, which are not at issue here.              55 Pa. Code
§ 3140.202(b) (emphasis added).
      Here, BCCYF contends B.K.’s placement goal was not adoption but was
SPLC, and, therefore, she is not eligible for adoption assistance. We, however, do
not read this regulation as narrowly as BCCYF does, particularly in light of prior
case law and the overarching goal of permanency in child placement. In cases of
private adoption, the county agency has no placement goal because it is not
involved. Yet, our Supreme Court has made clear that adoption subsidies are
available even in private adoptions. Laird v. Dep’t of Pub. Welfare, 23 A.3d 1015,
1028 (Pa. 2011). If our courts have allowed subsidies even in cases where there
was no county agency involvement, we cannot find a subsidy is not owed simply
because an agency that is involved has not designated adoption as the goal but
selected a different placement goal.        This is especially true when a court
subsequently finds it is in the child’s best interest to allow the adoption, despite the
agency’s recommendation, which is what occurred here.               This approach is
consistent with a goal of children and youth social services in Pennsylvania, which
is “to ensure for each child in this Commonwealth a permanent, legally assured
family which protects the child from abuse and neglect.” 55 Pa. Code § 3130.11.



                                           5
Therefore, a child who has been placed by a county agency is eligible for an
adoption subsidy, even if the county agency’s placement goal is not adoption, so
long as the child otherwise meets the eligibility requirements and is subsequently
adopted.
      Having concluded B.K. is an eligible child, which would entitle the Kirsches
to an adoption subsidy, we now address whether the failure to enter into an
adoption assistance agreement prior to the adoption being finalized is fatal to the
Kirsches’ claim. The regulations provide that a “county agency shall execute a
binding written adoption assistance agreement between the parties -- prospective
adoptive parents and county agency -- at the time of or before the court issues
the final adoption decree.”      55 Pa. Code § 3140.203(a) (emphasis added).
However, our courts have allowed for an adoption subsidy, even after the adoption
is finalized, where there are extenuating circumstances. Our Court first adopted
the extenuating circumstances doctrine in Gruzinski, and our Supreme Court
applied the doctrine in Laird. A county agency’s failure to advise adoptive parents
of the availability of adoption assistance has been recognized as an extenuating
circumstance. Laird, 23 A.3d at 1029. This is because, in part, the county agency
has an affirmative duty to promote adoption assistance.        See 55 Pa. Code §
3130.36(b)(2) (“The county shall actively seek ways to promote the adoption
assistance program.”).
      Here, it is undisputed that BCCYF and the Kirsches did not enter into an
adoption assistance agreement related to B.K. prior to the adoption being finalized.
The Kirsches contend extenuating circumstances exist here because they were
never notified by BCCYF of the availability of the subsidy at the time they were
adopting B.K. BCCYF asserts it did not have a duty to advise the Kirsches of the



                                         6
subsidy for two reasons. First, it argues it no longer had jurisdiction over the child
and was unaware of the adoption proceedings. In support, BCCYF relies heavily
upon the Supreme Court’s decision in Laird. In that case, children were placed
with a private adoption agency after their biological mothers voluntarily
relinquished their parental rights and placed the children with the private agency.
The children’s subsequent adoptions were handled entirely by a private agency,
and the children were never declared dependent to bring them under the umbrella
of the court or county agency.      It was not until the parents sought adoption
assistance several years after the adoption that the county agency learned of the
children’s existence. The Court reiterated that “whether an adoption is public or
private, a county adoption agency has affirmative statutory and regulatory
duties it must undertake prior to the consummation of an adoption.” Laird, 23
A.3d at 1030 (emphasis added). However, when the agency does not know of the
existence of the child prior to finalization of the adoption, the Court found no duty
existed. Id. It based its decision on federal policy guidelines, which provide:

      [I]n circumstances where the State agency does not have
      responsibility for placement and care, or is otherwise unaware of the
      adoption of a potentially special needs child, it is incumbent upon the
      adoptive family to request adoption assistance on behalf of the child.
      It is not the responsibility of the State or local agency to seek out and
      inform individuals who are unknown to the agency about the
      possibility of [] adoption assistance for special needs children who
      also are unknown to the agency.
Id. at 1031 (quoting Department Policy Statement, ACYF-CB-PA-01-01 (January
23, 2001)).
      Unlike Laird, however, here, B.K. was adjudicated dependent and BCCYF
had legal and physical custody of her for nearly three years until the court
approved SPLC with the Kirsches. Furthermore, although it was not a party to the


                                          7
parental rights termination proceeding, which was part of the adoption process, a
representative of BCCYF was subpoenaed and testified as to why termination
proceedings were not undertaken in Blair County. Therefore, BCCYF cannot
claim ignorance of the existence of B.K., like the county agency could in Laird,
nor can BCCYF claim ignorance of the adoption proceedings. Thus, under the
facts of this case, neither reason excuses BCCYF’s duty to notify the Kirsches of
the adoption subsidy.
      Second, BCCYF argues it had no duty to advise the Kirsches of the subsidy
because the Kirsches were already aware of the subsidy’s existence through Mrs.
Kirsch’s former employment with a private adoption agency, from the agency that
did the home study, and from their earlier adoption of B.K.’s sibling, in which they
received the subsidy. However, the county agency has an affirmative duty to
promote the subsidy and to advise prospective parents of the availability of the
subsidy. 55 Pa. Code § 3130.36(b)(2). BCCYF did not fulfill its duty. Therefore,
the Secretary correctly stated that “[n]otifying potential adoptive parents of the
Adoption Assistance Program is the responsibility of the state agency and its
administration. The record establishes that no state agency offered the Kirsches
adoption assistance for which they were eligible.” (June 7, 2016 Final Order.)
BCCYF was aware of B.K.’s placement with the Kirsches and was present at the
proceedings to terminate the rights of the biological father. Therefore, BCCYF
should have notified the Kirsches. This is particularly true given that the Kirsches
were receiving a subsidy by virtue of a subsidy agreement executed with BCCYF
with regard to their permanent legal custodianship of B.K, which would cease
upon their adoption of B.K. Whether or not the Kirsches may have fortuitously
been aware of the general availability of adoption subsidies does not relieve the



                                         8
county agency of its responsibility. Therefore, in this situation, the Department did
not err in finding that extenuating circumstances exist which excuse the Kirsches’
late request for the subsidy.
      Because B.K. is an eligible child and extenuating circumstances exist for the
late application for an adoption subsidy, we must examine BCCYF’s last issue –
which county agency is ultimately responsible for the subsidy. BCCYF argues that
the ALJ correctly decided it should be Cambria County’s obligation, as that is
where the child has resided since 2007 and where she resided when the adoption
was finalized. BCCYF directs this Court to a bulletin from the Department’s
Office of Children, Youth, and Families (OCYF) for support. Specifically, it cites
Question 17 of OCYF Bulletin 3140-99-01, which provides that if a child had been
adopted and was receiving a subsidy but then relocates to another county when the
adoption resolves and the child is placed in a new adoptive home, that the county
agency where the child currently lives is responsible for the subsidy. 4 That is not
the situation we have here. After being placed with the Kirsches by BCCYF, B.K.
was not removed from their home and placed into a new home by Cambria County.
Cambria County’s agency never had any involvement with B.K.
      We find the guidance found in Question 1 of the OCYF Bulletin more
persuasive. It provides that when a child in the custody of a private agency is
being placed for adoption, either the county where the birth parent(s) with whom
the child was living when the child was placed in the custody of the private
agency or the county where the child was located when taken into custody, if the
child was abandoned or the parents are unknown, is responsible for the subsidy.
Although B.K. was not in the custody of a private agency at any time, her adoption

      4
          The OCYF Bulletin is appended to BCCYF’s brief as Exhibit E.



                                              9
was not overseen by a county agency. Furthermore, if the birth parents’ county of
residence or the county where the child was located when taken into custody are
factors when a private agency is involved, it follows that they should also be
factors when a county agency is involved. These factors also focus on the time
period that the child was placed or taken into custody by the agency. While it is
not known where the biological parents resided when B.K. was taken into custody
and/or placed with the Kirsches,5 because BCCYF initially took custody of B.K., at
a minimum, B.K. was located in Blair County at that time. It bears emphasis that
BCCYF was the county agency that originally took custody of B.K., placed her
with the Kirsches, and initiated action to terminate the biological mother’s parental
rights, whereas at no time did Cambria County Children and Youth participate in
the case. Because of BCCYF’s involvement in this case, we find it is the proper
agency responsible for the adoption subsidy.
        Based upon the foregoing, we find that the Kirsches are eligible for an
adoption subsidy for the adoption of B.K. and that their failure to enter into an
adoption assistance agreement prior to finalizing the adoption is excused by
extenuating circumstances. Furthermore, because BCCYF is the county agency
ultimately responsible for B.K.’s placement with the Kirsches, it, not Cambria
County, is responsible for the subsidy. Accordingly, we affirm the Department’s
Order.

                                          _____________________________________
                                          RENÉE COHN JUBELIRER, Judge

    5
       It is possible the biological mother resided in Blair County because that is where her
parental rights were terminated. Venue for involuntary termination proceedings is proper in,
inter alia, the county where the biological parent whose rights are being terminated resides.
Section 2302 of the Adoption Act, 23 Pa. C.S. § 2302.



                                             10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Blair County Children, Youth and        :
Families,                               :
                        Petitioner      :
                                        :
                  v.                    :   No. 1073 C.D. 2016
                                        :
Department of Human Services,           :
                      Respondent        :


                                     ORDER


            NOW, June 21, 2017, the June 7, 2016 Order of the Department of
Human Services is AFFIRMED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
