        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tatiana Furman,                         :
                                        :
                  Petitioner            :
                                        :
            v.                          :   No. 1852 C.D. 2014
                                        :   Submitted: September 25, 2015
Department of Aging,                    :
                                        :
                  Respondent            :


BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                  FILED: December 15, 2015

             This matter is a petition for review filed by Tatiana Furman
(Petitioner) appealing an order of the Bureau of Hearings and Appeals (BHA) that
held that she is ineligible for grandparent support benefits under the National
Family Caregiver Support Program (NFCSP), 42 U.S.C. §§ 3030s-3030s-2. For
the reasons set forth below, we vacate and remand.
            The NFCSP is a federally funded program that provides support
services, including expense reimbursement, to family members providing care for
elderly relatives and to grandparents and other relatives age 55 or older who are
primary caregivers for a child no older than age 18 or a disabled child, where the
“biological or adoptive parents are unable or unwilling to serve as the primary
caregiver of the child.” 42 U.S.C. §§ 3030s(a), 3030s-1. (See also Certified
Record Item (R. Item) 8, Hearing Transcript (H.T.) at 14-15, 20, 73, 87.)
Petitioner, a Russian citizen who is a resident of Montgomery County, is the
biological grandmother of a minor child, born in Russia in 2004, whose biological
mother died in 2012 and whose biological father is unknown. (R. Item 5, BHA
Decision Findings of Fact (F.F.) ¶1; R. Item 3, Exs. A-3, A-5; R. Item 8, H.T. at
29-31, 96-97.) In May 2013, Petitioner, with her son-in-law’s assistance, applied
with the Montgomery County Office of Aging and Adult Services (County
Agency) seeking grandparent support benefits under the NFCSP with respect to her
care for the grandchild. (R. Item 5, BHA Decision F.F. ¶2, Analysis & Conclusion
at 5; R. Item 8, H.T. at 29, 71-72.) Petitioner was 61 years old at the time of this
application and therefore met the age eligibility requirement for NFCSP
grandparent support benefits. (R. Item 5, BHA Decision F.F. ¶1a; R. Item 3, Exs.
A-3, A-5; R. Item 8, H.T. at 46-47.)
            In conjunction with this application, Petitioner’s son-in-law provided
the County Agency with an April 4, 2013 Russian civil registry record and his
English translation, dated April 5, 2013, which bore the title “Adoption
Certificate” and stated that the grandchild was “adopted” by Petitioner. (R. Item 5,
BHA Decision F.F. ¶3; R. Item 8, H.T. at 74-76; R. Item 3, Ex. A-2.) Petitioner’s
son-in-law also provided to the County Agency a March 1, 2013 Russian court
decision and his English translation, dated April 3, 2013, that described the
proceeding concerning Petitioner and the grandchild on which the civil registry
record was based as a “guardianship” proceeding and stated that “guardianship” of
the grandchild was granted to Petitioner. (R. Item 5, BHA Decision F.F. ¶4; R.
Item 8, H.T. at 76-82; R. Item 3, Exs. A-3, A-4.)
            On May 30, 2013, the County Agency issued an adverse action notice
denying Petitioner’s request for grandparent support benefits on the grounds that
Petitioner was an adoptive parent and that her status as an adoptive parent made

                                         2
her ineligible under the NFCSP. (R. Item 5, BHA Decision F.F. ¶6; R. Item 3, Ex.
C-1.) Petitioner filed an appeal to the County Agency for review of the denial, and
the County Agency denied the appeal, again concluding that Petitioner was
ineligible as the adoptive parent of her grandchild. (R. Item 5, BHA Decision F.F.
¶¶7-8; R. Item 3, Exs. C-1, C-2.) Subsequent to its decisions on Petitioner’s
application, the County Agency had the original Russian certificate and court
decision translated by an outside agency, Language Services Associates (LSA).
(R. Item 5, BHA Decision F.F. ¶¶5, 10; R. Item 8, H.T. at 79, 82-86.)1 The LSA
translation of the Russian court decision described the proceeding as a “petition for
adoption” and stated the court granted and confirmed Petitioner’s “adoption” of the
grandchild. (R. Item 3, Ex. A-5.)
               Petitioner timely appealed to the Department of Aging (Department),
which on November 14, 2013 reversed the County Agency’s decision and granted
Petitioner grandparent support benefits. (R. Item 5, BHA Decision F.F. ¶¶9, 11; R.
Item 3, Exs. C-3, C-4.) The County Agency requested a formal hearing appealing
the determination that Petitioner was entitled to benefits, and a hearing was held on
June 3, 2014 before a BHA administrative law judge (ALJ). (R. Item 5, BHA
Decision F.F. ¶¶12, 14; R. Item 3, Ex. C-5.) Petitioner filed a formal petition to
intervene in the County Agency’s appeal, which was granted by the ALJ at the
hearing. (R. Item 5, BHA Decision F.F. ¶¶13, 14c; R. Item 8, H.T. at 11-12.)
               Attorneys for the Department and the County Agency appeared at the
BHA hearing, but neither Petitioner, who does not speak English, nor her son-in-


1
   The Department’s repeated assertions that the LSA translation was sought by BHA
(Respondent’s Br. at 7-10) misstate the record in this case. It is clear from both the evidence and
the BHA decision that the LSA translation was obtained solely by the County Agency, and not
by BHA. (R. Item 5, BHA Decision F.F. ¶5, Analysis & Conclusion at 6 & n.3; R. Item 8, H.T.
at 79, 82-85.)
                                                3
law appeared. (R. Item 5, BHA Decision at 1, F.F. ¶¶14a, 14b; R. Item 8, H.T. at
5-8, 11-12.) The ALJ recited at the hearing that Petitioner had been sent notice of
the hearing and that her son-in-law had been advised that he could not represent
Petitioner at the hearing (R. Item 8, H.T. at 11-12); however, no documents appear
in the certified record setting forth these or any other communications concerning
notification of the hearing or who could attend the hearing. The only witnesses at
the hearing were two Department employees, who testified concerning the decision
that Petitioner was eligible for grandparent support benefits, and a County Agency
representative, who testified concerning the reasons for its rejection of Petitioner’s
application.
               At the hearing, the translations of the Russian documents by
Petitioner’s son-in-law and by LSA were introduced in evidence, along with a copy
of the original Russian documents. (R. Item 8, H.T. at 74-76, 80-83, 91-93; R.
Item 3, Exs. A-2, A-3, A-4, A-5.) The translations by Petitioner’s son-in-law each
bore a statement signed by him declaring that he is “fully competent and fluent in
English and Russian languages” and that the translation was “a true translation of
the original document.” (R. Item 3, Exs. A-2, A-3.) With respect to the LSA
translation, the Department and the County Agency entered into and introduced in
evidence the following stipulation:

               1. Cornee van der Linden is employed as a Language Services
               Associate Representative for Languages [sic] Services
               Associates.

               2. If called to testify she would testify that in this matter, she
               received Case No. 2-10162/2012 [the number appearing on
               the March 1, 2013 Russian court decision] a Russian
               document to be translated to English.
               3. She would further testify that the document was a petition
               for adoption and was translated from Russian to English by
                                           4
              qualified independent linguists contracted by Language
              Services Associates.

              4. Finally she would testify that the translation provided was a
              true and accurate translation from Russian to English.
(R. Item 3, Ex. BHA-1; R. Item 8, H.T. at 12-14.) Although the correct translation
of the Russian documents was a key disputed issue, no witness involved in the
translations or fluent in Russian testified at the hearing, and no evidence was
introduced as to the reasons for the differences in translation or the meaning or
legal effect of the terms in the Russian documents.
              Following the hearing, the ALJ issued a recommended adjudication
sustaining the County Agency’s appeal, vacating the Department’s notice granting
Petitioner grandparent support benefits, and ordering that the County Agency’s
denial of benefits be reinstated. (R. Item 5, BHA Decision.) On August 22, 2014,
BHA issued a final administrative action order affirming the ALJ’s adjudication as
its decision. (Id. at 1.) BHA found the LSA translation to be the more credible
translation of the Russian documents, and concluded, based on the LSA
translation, that Petitioner was the adoptive mother of her grandchild. (R. Item 5,
BHA Decision Analysis & Conclusion at 6-7.) BHA held that a grandparent who
has adopted her grandchild is ineligible for benefits under the NFCSP and that
Petitioner was therefore ineligible for grandparent support benefits. (Id. at 7.)
              Petitioner timely appealed BHA’s decision to this Court.2 Petitioner
challenges both BHA’s interpretation of the NFCSP and its determination that she
is the adoptive mother of her grandchild.3


2
 This Court’s review of the BHA decision is limited to determining whether an error of law was
committed, whether constitutional rights were violated, and whether BHA’s findings of fact are
supported by substantial evidence. Bucks County Children & Youth Social Services Agency v.
Department of Public Welfare, 977 A.2d 1254, 1256 (Pa. Cmwlth. 2009).

                                              5
               The NFCSP does not expressly state that grandparents are excluded
from benefits if they have also adopted the grandchild for whom they are the
primary caregiver.        The NFCSP provides benefits “for grandparents or older
individuals who are relative caregivers.” 42 U.S.C. § 3030s-1(a)(2). The NFCSP
defines “grandparent or older individual who is a relative caregiver” as

               a grandparent or stepgrandparent of a child, or a relative of a
               child by blood, marriage, or adoption, who is 55 years of age
               or older and--

               (A) lives with the child;
               (B) is the primary caregiver of the child because the
               biological or adoptive parents are unable or unwilling to
               serve as the primary caregiver of the child; and
               (C) has a legal relationship to the child, as such legal custody
               or guardianship, or is raising the child informally.
42 U.S.C. § 3030s(a)(2). The requirement that “the biological or adoptive parents
are unable or unwilling to serve as the primary caregiver” can be read as requiring
that no legally responsible parent is available and willing to care for the child, as
BHA held and the Department argues. However, because the statute uses the
disjunctive “or,” rather than requiring that no biological or adoptive parent be able
to care for child, the statute can equally be interpreted as requiring only that the
grandparent undertook to care for the child because the parent to whom he or she is
related was unable or unwilling to care for the child, with the reference to
“adoptive parents” addressing the situation where the grandparent relationship is
due to an adoption. Under the latter interpretation, Petitioner would satisfy the


3
  Petitioner also argues that she was not given proper notice of her right to participate in the ALJ
hearing. In light of our decision that the matter must be reversed and remanded, Petitioner will
have the opportunity to participate and be heard before any ruling adverse to her is issued. We
therefore do not address this argument.
                                                 6
NFCSP’s requirement that “the biological or adoptive parents are unable or
unwilling to serve as the primary caregiver,” even if she has adopted her
grandchild, as she is his primary caregiver because his biological parents are
unavailable and cannot care for him. 42 U.S.C. § 3030s(a)(2) (emphasis added).
             There does not appear to be any legislative history or regulatory
interpretation resolving this ambiguity in the NFCSP’s grandparent provisions.
There are no federal regulations under the NFCSP and Pennsylvania’s family
caregiver regulations do not apply to the grandparent support program. (R. Item 8,
H.T. at 14-16, 93-94.) The federal Administration on Aging (AOA) has issued a
policy statement that, without elaboration, describes the persons eligible for the
grandparent support program as “[g]randparents and other relatives (not parents)
55 years of age and older.” (R. Item 3, Ex. BHA-2 at 3, R. Item 8, H.T. at 94-96.)
This language is likewise ambiguous. The Department argues that this prescribes
that grandparents and other relatives are eligible only if they are not also parents.
This language, however, may be intended instead to merely mean “grandparents
and other non-parent relatives,” with the phrase “not parents” modifying only the
phrase “other relatives,” as parents would ordinarily fall within the term “relatives”
unless excluded. This latter interpretation is supported by other language in the
AOA policy statement describing the eligible persons under the NFCSP as
including “[g]randparents and relative caregivers, age 55 years or older, of children
no older than age 18” and “[r]elative caregivers, age 55 years or older, of a
disabled adult 19-59 years of age (not including natural or adoptive parents).” (R.
Item 3, Ex. BHA-2 at 2.)
             No other evidence showing the federal government’s interpretation of
the grandparent provisions of the NFCSP was before BHA or is before this Court,
nor was any evidence introduced setting forth an interpretation by the Department.

                                          7
While there was testimony at the ALJ hearing that there was an email
communication from AOA allegedly confirming that adoption made Petitioner
ineligible, the County Agency and the Department chose not to introduce that
document in evidence.     (R. Item 8, H.T. at 88-90.)      The only administrative
interpretation of the statutory language before us is BHA’s ruling in its decision.
In construing an ambiguous statute, the courts must accord great deference to an
interpretation by an agency charged with enforcement of the statute. Banfield v.
Cortes, 110 A.3d 155, 174 (Pa. 2015); Alpha Auto Sales, Inc. v. Department of
State, Bureau of Professional & Occupational Affairs, 644 A.2d 153, 155 (Pa.
1994); Packer v. Bureau of Professional & Occupational Affairs, 99 A.3d 965, 969
(Pa. Cmwlth. 2014); see also 1 Pa. C.S. § 1921(c)(8). BHA, however, is not an
agency charged with enforcement of the NFCSP, as it is a part of the Department
of Human Services, a different agency not responsible for administering the
statute. BHA’s interpretation of the NFCSP’s language is therefore not entitled to
deference. The fact that the Department has defended BHA’s interpretation in its
brief in this appeal does not constitute an interpretation by the Department entitled
to the deference under the principles of statutory construction.         Perrotta v.
Department of Transportation, Bureau of Driver Licensing, 110 A.3d 255, 259-60
(Pa. Cmwlth. 2015); Packer, 99 A.3d at 970-71.
             The Department argues that the NFCSP should be read to exclude
grandparent caregivers who adopt their grandchildren because federal programs
“generally prohibit legally responsible relatives, such as parents, from becoming
paid caregivers.” (Respondent’s Br. at 14 (emphasis omitted), citing Pa. General
Assembly Joint Legislative Budget and Finance Committee Report, Family
Caregivers in Home and Community-Based Waiver Programs (Legislative


                                         8
Committee Report)4 at 29.) That argument likewise fails. The restrictions on
legally responsible family members as paid caregivers do not apply to the NFCSP,
as the NFCSP benefits are support services and reimbursement to family members
for expenses, not payment to the family member for providing care. (Legislative
Committee Report at 22; R. Item 8, H.T. at 20; R. Item 3, Ex. BHA-2.) Indeed, the
NFCSP provides benefits to legally responsible relatives, such as spouses.
(Legislative Committee Report at 22-23; R. Item 3, Ex. BHA-2.)
              We need not construe the NFCSP on this inadequate record, however,
because BHA’s determination that Petitioner was the adoptive parent of her
grandson is not supported by substantial competent evidence.                  Pennsylvania’s
Adoption Act provides a procedure for recognition of adoptions that have occurred
under the laws of foreign countries under which a Pennsylvania certificate of
adoption is issued following a court determination that the foreign decree
constitutes a full and final adoption. 23 Pa. C.S. § 2908; Pa. O.C. Rule 15.8. Such
a certificate of adoption constitutes proof of the adoption “in any legal proceedings
in this Commonwealth.” 23 Pa. C.S. § 2907. No evidence was introduced at the
ALJ hearing as to whether the Russian court decision or civil registry record was
registered as a foreign adoption or whether a certificate of adoption was issued
under the Adoption Act.
              Nor was any other competent evidence introduced from which BHA
could determine whether the Russian documents legally constituted an adoption.
No evidence was presented as to the nature of the Russian proceeding and court
decision other than the competing and conflicting written translations. To the
extent that the translations conflicted, there was no stipulation by all of the parties


4
  This document appears at http://lbfc.legis.state.pa.us/Resources/Documents/Reports/527.pdf
(last visited November 18, 2015).
                                               9
that either translation was a valid translation of the Russian documents. The only
evidence supporting the correctness of the translations was hearsay. Petitioner’s
son-in-law did not testify concerning his translation and no testimony was offered
of a witness shown to be fluent in the Russian language that the LSA translation
was a correct translation. While the County Agency and the Department entered
into a stipulation as to the testimony of an LSA representative, that stipulation was
not agreed to by Petitioner and therefore was not binding on her. Moreover, the
stipulated testimony concerning the accuracy of the LSA translation was itself
purely hearsay. The stipulation did not state that the witness would testify that she
was fluent in Russian or had read or translated the documents. Rather it stated
only the witness would testify that other unidentified individuals under contract
with LSA translated the documents and that those other unidentified individuals
were “qualified independent linguists.” (R. Item 3, Ex. BHA-1 ¶3.)
             Hearsay evidence, even if admitted without objection, is not
substantial evidence and cannot support a finding of fact in this administrative
proceeding unless it is corroborated by other competent evidence in the record.
Chambers v. Department of Public Welfare, 19 A.3d 1, 4-6 (Pa. Cmwlth. 2011);
Bucks County Children & Youth Social Services Agency v. Department of Public
Welfare, 977 A.2d 1254, 1256 (Pa. Cmwlth. 2009). “[F]actual findings will not
stand if they are based solely on hearsay.” Chambers, 19 A.3d at 4. The validity
of the LSA translation was not corroborated by any non-hearsay evidence. BHA’s
determination that Petitioner was the adoptive parent of her grandchild based on
that translation is therefore not supported by substantial evidence and must be
reversed.




                                         10
               For the reasons set forth above, the decision of BHA ruling that
Petitioner is ineligible for benefits cannot stand.5                 Ordinarily, reversal for
insufficient evidence would result in the reinstatement of the underlying decision
that BHA had reversed.           However, statements by the Department at the ALJ
hearing concerning its stipulation and the issues in dispute may have led the
County Agency to believe both that it did not need to introduce further evidence
that the LSA translation was a correct translation and that the construction of the
NFCSP was not in dispute. (R. Item 8, H.T. at 12-14, 101-04.) Accordingly, we
vacate the BHA decision and remand this matter to BHA for a new hearing before
an ALJ at which all parties, Petitioner, the County Agency and the Department,
may introduce additional evidence as to whether Petitioner is the adoptive mother
of the grandchild at issue and whether there is any policy or other interpretation by
the federal AOA and/or the Department concerning the effect of an adoption on
whether an otherwise eligible grandparent may receive benefits under the NFCSP.



                                           __________ ___________________________
                                           JAMES GARDNER COLINS, Senior Judge




5
  Subsequent to the briefing in this appeal, Petitioner filed an application to place the entire
record and file in this matter under seal on the ground that the record contains confidential
personal identifying information concerning Petitioner and her grandchild. The Department has
not opposed this application. The record filed by BHA contains documents concerning the
custody or adoption of a minor child that are not public records. We therefore grant Petitioner’s
application to seal insofar as it seeks the sealing of the BHA record. Petitioner, however, has not
identified any specific documents in or portions of this Court’s file, other than the BHA record,
that are protected from public access. We therefore deny Petitioner’s application to seal this
Court’s file as a whole, without prejudice to her right to move to seal specific documents or
portions of documents that contain confidential personal information.
                                               11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tatiana Furman,                           :
                                          :
                   Petitioner             :
                                          :
             v.                           :   No. 1852 C.D. 2014
                                          :
Department of Aging,                      :
                                          :
                   Respondent             :

                                    ORDER


             AND NOW, this 15th day of December, 2015, the order of the Bureau
of Hearings and Appeals (BHA) in the above-captioned matter is VACATED.
This case is REMANDED to BHA with instructions to hold a new hearing before
an administrative law judge in this matter at which all parties, including Petitioner
as intervenor, may introduce evidence as to whether Petitioner is the adoptive
mother of the grandchild at issue and evidence concerning the interpretation of the
National Family Caregiver Support Program by the agencies charged with
enforcement and administration of that statute. Petitioner’s application to seal the
record and file in this matter is GRANTED insofar as it seeks the sealing of the
agency record. The Chief Clerk is directed to place the BHA record electronically
filed with this Court on November 7, 2014 under seal. Petitioner’s application to
seal is DENIED without prejudice to the extent that it seeks the sealing of this
Court’s docket and file other than the BHA record.


             Jurisdiction relinquished.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge
