         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Erie County CYS,                    :
                   Petitioner       :
                                    :
            v.                      : No. 677 C.D. 2016
                                    : Submitted: October 28, 2016
Department of Human Services,       :
                 Respondent         :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                           FILED: November 21, 2016


            Erie County Children and Youth Services (CYS) petitions for review
of the order of the Department of Human Services (Department) upholding the
order of the Bureau of Hearings and Appeals (BHA) granting C.S.’s
(Grandmother) request for adoption assistance subsidy for her adopted daughter,
K.S. (K.S. or child). We affirm.


            K.S. was born on February 14, 2008, and was removed from her
mother’s (Mother) home and taken in by her maternal Grandmother on May 10,
2011.    Grandmother, a recovering alcoholic, sought emergency temporary
guardianship of K.S. from the Court of Common Pleas of Erie County (trial court)
and was appointed as K.S.’s temporary legal guardian.       On May 25, 2011,
Grandmother relapsed into alcohol and CYS removed K.S. from her home. A
Master of the trial court recommended shelter care for K.S. pursuant to Section
6332 of the Pennsylvania Juvenile Act, 42 Pa.C.S. § 6332, noting that it was not in
the child’s best interest to return her to Mother or Grandmother’s care. The trial
court ordered that K.S. be removed from Grandmother’s care pursuant to a
protective custody order, and K.S. was placed in the temporary legal and physical
custody of CYS.


             CYS filed a dependency petition, alleging that K.S. was without
proper parental care or control as it pertains to Mother, her biological father or
Grandmother, and that it would be contrary to the welfare, safety and health of
K.S. to remain under their care. Specifically, CYS argued that K.S.’s Mother had
significant drug and alcohol addictions, her biological father had not had a
relationship with K.S. since her birth, and that Grandmother also had an alcohol
addiction and had relapsed since obtaining temporary guardianship.


             In June 2011, the Master recommended that K.S. be declared
dependent pursuant to Section 6302 of the Pennsylvania Juvenile Act, 42 Pa.C.S. §
6302. The Master found that allowing K.S. to remain in Grandmother’s home
would be contrary to the child’s welfare and that reasonable efforts were made by
CYS to prevent or eliminate the need for removal of the child from the home. The
trial court adopted the Master’s recommendation and ordered that K.S. be declared
dependent.




                                        2
                K.S. remained in kinship care with a relative until November 2011 at
which time she was placed in foster care. In December 2012, the trial court
ordered a change in placement and returned K.S. to the care of Grandmother and
Grandmother’s partner, with the placement goal of adoption.                        The child’s
biological parents voluntarily relinquished their parental rights.


                In January 2013, Grandmother applied for adoption assistance,
claiming that K.S. met the criteria for being eligible for adoption assistance1 and
that she had a genetic condition which indicates a high risk of developing a disease
or disability due to her biological mother’s mental health issues and drug and
alcohol dependency.2         Grandmother stated that she was unable to adopt K.S.
without adoption assistance.


                In March 2013, Grandmother entered into a Subsidized Adoption
Assistance Agreement with CYS which provided that K.S. was eligible for non-
recurring expenses only,3 and that monthly adoption assistance payments were not

       1
          In the application for adoption assistance, Grandmother noted that K.S. was eligible for
adoption assistance because she: was under 18 years of age; was a citizen or qualified alien of
the United States; was involuntarily removed from her home pursuant to a judicial determination
that continuation in the home would be contrary to the welfare of the child; was free for adoption
because parental rights had been terminated, or parental death, or a combination of the two; was
in the legal custody of a public or licensed private agency; and had been in placement not less
than six months.

       2
         Grandmother later testified that K.S. exhibited signs of attention deficit hyperactivity
disorder and that she had been in therapy for at least eight months.

       3
           The Subsidized Adoption Assistance Agreement explained that non-recurring expenses
are:

(Footnote continued on next page…)

                                                3
applicable.    The basis for the denial of assistance was that Pennsylvania law
precludes adoption assistance where there is a finding that continuation in a home
is contrary to the welfare of the child and that reasonable efforts had been made to
prevent removal before adoption was considered. Because there was a judicial
determination that the continuation in Grandmother’s home at one time was not in
the child’s best interest, adoption assistance was deemed unavailable. On April 23,
2013, Grandmother appealed the denial of monthly adoption assistance and the
next day the adoption of K.S. by Grandmother was made final.


              Following a hearing before the BHA, the Administrative Law Judge
(ALJ) issued an adjudication recommending that Grandmother’s appeal be
sustained. Explaining that Section 3140.202 of the Department’s regulations, 55
Pa. Code § 3140.202, requires CYS to certify for adoption assistance children
whose placement goal is adoption, and that K.S. was placed in Grandmother’s
home in December 2012 with the goal of adoption, the ALJ found that K.S. was

(continued…)

              [O]ne-time expenses which are reasonable and necessary costs
              directly related to the legal adoption of a child. These expenses
              include: adoption fees; court costs; attorney fees incurred by
              adoptive parent; and other expenses directly related to the adoption
              which have not been reimbursed from other sources. Such
              expenses may include health and psychological examinations,
              consultations with child’s medical providers, transportation and the
              reasonable cost of lodging and food for the child and the adoptive
              parent when necessary to complete the placement or adoption
              process. Adoptive families may be reimbursed up to $2,000 in
              non-recurring expenses based on actual receipts.

(Record (R.) Item No. 3, at A-1.)




                                               4
entitled to monthly adoption assistance.                 The BHA adopted the ALJ’s
recommendation in its entirety. CYS petitioned for reconsideration, which the
Department granted. The Department then upheld the BHA’s determination. This
appeal by CYS followed.


               On appeal,4 CYS argues that the Department erred in determining that
Grandmother was entitled to adoption assistance payments. Citing to 42 U.S.C. §
672(a)(2)(A)(ii), which deals with “Removal and Foster Care Placement
Requirements,” CYS argues that adoption assistance payments can only be made if
there was “a judicial determination … that continuation in the home from which
removed would be contrary to the welfare of the child and that reasonable efforts
… have been made.” 42 U.S.C. § 672(a)(2)(A)(ii). It contends that if a child is
removed from the home to which she is ultimately returned, then the removal
home is requesting the subsidy. K.S. was initially removed from Grandmother’s
home because remaining there would be contrary to K.S.’s welfare and reasonable
efforts had been made to prevent removal;5 therefore, K.S. was ineligible for
adoption assistance payments. However, 42 U.S.C. § 672(a)(2)(A)(ii) applies only

       4
          Our review is limited to determining whether the Department’s adjudication is
supported by substantial evidence, whether it is in accordance with the law, or whether
constitutional rights were violated. Adoption ARC, Inc. v. Department of Public Welfare, 727
A.2d 1209, 1212 (Pa. Cmwlth. 1999).

       5
          This was established through testimony of Susan Passerotti, a fiscal technician for CYS,
who testified that K.S. was ineligible for a subsidy because she was removed from
Grandmother’s home in May 2011 because it was against the best interests of the child to reside
there; therefore, she did not meet the eligibility requirements. She explained that, “When you’re
returned to a removal, you are no longer considered out-of-home foster care, so [K.S.] would not
be eligible for any funding source.” (Notes of Transcript at 21.)




                                                5
to foster care maintenance payments and not adoption assistance, which may be the
reason that the Department does not mention this in its brief.


               Nonetheless, CYS argues that 42 U.S.C. § 672(a)(2)(A)(ii) has some
application based on our decision in Gruzinski v. Department of Public Welfare,
731 A.2d 246 (Pa. Cmwlth. 1999) which, citing to 55 Pa. Code § 3140.205,
provides that, among other factors,6 the following must also be present for adoption
assistance to be available:

               1. The child’s removal from the home is the result of a
               judicial determination that continuation in the home is
               contrary to the child’s welfare, or there is a voluntary
               placement agreement; and

               2. At the time the petition which seeks removal from the
               home was filed, or the voluntary placement agreement
               was signed, the child met the Aid for Families with
               Dependent Children (AFDC) relatedness test.


Gruzinksi, 731 A.2d at 257 (footnotes omitted).


               Relying on Gruzinski, CYS maintains that the ALJ failed to consider
that K.S.’s removal from Grandmother’s home was the result of a judicial
determination that remaining in the home would be contrary to the child’s welfare
and that reasonable efforts were made in preventing the removal. This argument is
incorrect for several reasons.


      6
          The “other factors” are those established under 55 Pa. Code § 3140.202(b).




                                                6
             First, while K.S. was initially removed from Grandmother’s home by
the trial court because it was determined to be in her best interest, the trial court
effectively reversed that determination when it returned K.S. to the care of
Grandmother and Grandmother’s partner, with the placement goal of adoption. In
effect, even if this provision were applicable, and we interpreted it the way CYS
suggests, there is no longer a judicial determination that K.S.’s removal from
Grandmother’s home was in her best interest.


             Second, in Allegheny County Office of Children v. Department of
Public Welfare, 912 A.2d 342, 346 (Pa. Cmwlth. 2006), we found that for a child
to be eligible for adoption assistance, he or she does not have to satisfy the
requirements set forth in 55 Pa. Code § 3140.205, reasoning:

             This issue was directly addressed and resolved by this
             Court in the case of Ward v. Pennsylvania Department of
             Public Welfare, 756 A.2d 122 (Pa. Cmwlth. 2000)….
             The Department contended that eligibility for assistance
             required the applicants to satisfy the standards in both 55
             Pa. Code § 3140.202 and 55 Pa. Code § 3140.205. This
             Court concluded that the two provisions addressed
             different objectives and explained:

               In sum, the federal eligibility requirements [§
               3140.205] determine only the source and amount of
               reimbursement that the county agency will receive;
               the state eligibility requirements contained in §
               3140.202 determine whether the child and adoptive
               parents are entitled to receive assistance from the
               county agency…. Because it is undisputed that [the
               child] meets the requirements outlined in §
               3140.202, she is eligible to receive all forms of
               adoption assistance available to her from the
               Commonwealth.



                                         7
                [Ward, 756 A.2d] at 125.


                When parental rights are terminated, a child is eligible7 for adoption
assistance under Section 3140.202(b) of the Department’s regulations, 55 Pa. Code
§ 3140.202(b), which states:

                (b) The county agency shall certify for adoption
                assistance children whose placement goal is adoption and
                who meet the following requirements:

                       (1) The child is 17 years of age or younger.

                      (2) Parental rights have been terminated under 23
                Pa.C.S. Part III (relating to the Adoption Act).

                     (3) The child is in the legal custody of the county
                agency or another agency approved by the Department.

                      (4) The child shall have at least one of the
                following characteristics:

                             (i) A physical,           mental     or    emotional
                condition or handicap.

      7
          Section 772 of the Adoption Opportunities Act defines “eligible child,” in relevant part,
as:

                [A] child in the legal custody of local authorities where parental
                rights have been terminated pursuant to the procedure set forth in
                Article III of the act of July 24, 1970 (P.L. 620, No. 208), known
                as the “Adoption Act,” and such child has been in foster placement
                for a period of not less than six months and where the child has
                been shown to be a difficult adoption placement because of a
                physical and/or mental handicap, emotional disturbance, or by
                virtue of age, sibling relationship, or ethnicity....

Act of June 13, 1967, P.L. 31, added by Act of December 30, 1974, P.L. 1039, as amended, 62
P.S. § 772.



                                                 8
                          (ii) A genetic condition which indicates a
             high risk of developing a disease or handicap.

                          (iii) Be a member of a minority group.

                          (iv) Be a member of a sibling group.

                          (v) Be 5 years of age or older.


(Emphasis added.)


             Here, the trial court ordered a change in placement and returned K.S.
to the care of Grandmother in December 2012 with the goal that she would be
adopted by Grandmother. The child is younger than 17 and free for adoption
because her biological parents voluntarily terminated their parental rights. She was
in the custody of CYS until December 2012, and given her biological mother’s
mental health issues and drug and alcohol dependency, the child is said to have a
genetic condition which indicates a high risk of developing a disease or disability.


             Because K.S. meets the eligibility requirements set forth in 55 Pa.
Code § 3140.202, Grandmother was eligible to receive adoption assistance.


             Accordingly, we affirm the Department’s order.



                                       ___________________________________
                                       DAN PELLEGRINI, Senior Judge




                                          9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Erie County CYS,                    :
                     Petitioner     :
                                    :
             v.                     : No. 677 C.D. 2016
                                    :
Department of Human Services,       :
                 Respondent         :




                                  ORDER


             AND NOW, this 21st day of November, 2016, the final order of the
Department of Human Services (Department) dated April 4, 2016, at No. 075-13-
0011, is affirmed.



                                    ___________________________________
                                    DAN PELLEGRINI, Senior Judge
