          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Todd and Stacey Myers,                   :
                 Petitioners             :
                                         :
             v.                          :   No. 506 C.D. 2015
                                         :   Submitted: October 30, 2015
Department of Human Services,            :
                 Respondent              :

BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MARY HANNAH LEAVITT, Judge1
             HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                              FILED: March 4, 2016

             Todd and Stacey Myers (Parents) petition for review of an order of the
Department of Human Services, Bureau of Hearings and Appeals (Department)
adopting the recommended adjudication of an Administrative Law Judge (ALJ).
The ALJ recommended affirming the decision of Adams County Children and
Youth Services (CYS) to deny Parents’ request for an increase in the monthly
adoption subsidy they receive for their child, T.M. (Child). Discerning no error by
the Department, we affirm.
             By way of background, The Federal Adoption Assistance and Child
Welfare Act of 1980,2 an amendment to Title IV–E of the Social Security Act,




1
  This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
2
  42 U.S.C. §§670–679(c).
provides for assistance for “special needs” children who are adopted.3                 In
accordance with the federal act, each state must enact its own program to receive
this assistance.4 In Pennsylvania the law is commonly referred to as the Adoption
Opportunities Act.5 It is intended to “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
the Adoption Opportunities Act, 62 P.S. §771. Under the Act, an adopting family
may apply for financial assistance on behalf of a child with such special needs,
provided that the child meets certain eligibility standards. Under the applicable
regulation, a child with “[a] physical, mental or emotional condition or handicap”
is eligible for adoption assistance. 55 Pa. Code §3140.202.6

3
  42 U.S.C. §671.
4
  42 U.S.C. §673.
5
  Act of June 13, 1967, P.L. 31, as amended, added by Section 1 of the Act of December 30,
1974, P.L. 1039, 62 P.S. §§771–774.
6
  In full, the child eligibility regulation states:
         (a) The county children and youth social service agency (county agency) is the
         sole authority for certifying a child’s eligibility for adoption assistance.
         (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.
                    (ii) A genetic condition which indicates a high
                    risk of developing a disease or handicap.
(Footnote continued on the next page . . .)
                                       2
               The Department’s regulations further provide that the county agency
and the prospective adopting parents must execute an adoption assistance
agreement at the time of, or before, the court issues the final adoption decree. 55
Pa. Code §3140.203(a). For adoption assistance payments, “[t]he amount of the
adoption assistance payment may not exceed the foster care maintenance payment
which would have been paid if the child for whom the adoption assistance payment
is made were living in a foster family home.” 55 Pa. Code §3140.204(b)(1)(i).
               With this background in mind, we turn to the facts of this case. Child
was born on February 4, 2007, and taken into CYS’s custody shortly thereafter.
On August 8, 2007, CYS placed Child into foster care with Parents. From 2007 to
2011, CYS compensated Parents $40 per day ($1,200 per month) for foster care
services. In April 2011, Child was diagnosed with Reactive Attachment Disorder
(RAD).7 Child was also diagnosed with Attention Deficit Hyperactivity Disorder


(continued . . .)
                        (iii) Be a member of a minority group.
                        (iv) Be a member of a sibling group.
                        (v) Be 5 years of age or older.
        (c) Prior to certification for adoption assistance, the county agency shall make
        reasonable efforts to find an adoptive home without providing adoption
        assistance. Evidence of this effort shall be recorded in the case record and include
        registration with the Department’s adoption exchange for at least 3 months.
        (d) If it would be against the best interests of the child because of factors, such as
        the existence of significant emotional ties with prospective adoptive parents while
        in the care of the parents as a foster child, the requirement of subsection (c) does
        not apply.
55 Pa. Code §3140.202.
7
  The National Institutes of Health defines Reactive Attachment Disorder as “a problem with
social interaction that occurs when a child’s basic physical and emotional needs are neglected,
particularly           when            the           child           is          an           infant.”
https://www.nlm.nih.gov/medlineplus/ency/article/001547.htm (last visited March 2, 2016).

                                                  3
(ADHD), Pervasive Development Disorder (PDD), asthma and environmental
allergies.
             On July 26, 2011, Parents executed an adoption assistance agreement
with CYS. The agreement provided that CYS would continue making payments to
Parents of $40 per day/$1,200 per month as an adoption assistance subsidy.
Reproduced Record at 272a (R.R. __). The agreement stated, in pertinent part:

             C. The County certifies that the child is eligible for a Medicaid
             card. The County is not responsible for any medical, dental,
             prescription, psychological, psychiatric or other such services
             not covered by the medical assistance program unless they are
             specified in this agreement.
                                             ***
             E. An adoption assistance subsidy cannot exceed the maximum
             foster care maintenance payment established by Adams County
             Children and Youth Services.
                                             ***
             G. Once the adoption has been finalized, the adoptive parent(s)
             may use the adoption assistance payment in any way that
             incorporates the child into the family without Agency oversight
             or approval.
                                             ***
             K. The terms of the Adoption Assistance may be re-negotiated
             at any point by The County of Adams or the adoptive parents
             while the Agreement is in effect. Changes must be made with
             the concurrence of both adoptive parents and the County. A
             change in the terms of the Agreement requires a new
             Agreement. The adoptive parents may request an increase in
             the amount of their subsidy due to changes in the needs of the
             child or due to the fact that the needs of the child were
             underestimated during the initial negotiations. The family must
             provide documentation related to changes in the needs of the
             child.


                                         4
             L. It is understood that the County will not be liable for any
             costs incurred by the adoptive parent(s), which are not included
             in this Agreement.

R.R. 273a-74a. On September 5, 2011, Parents adopted Child and began receiving
an adoption subsidy of $40 per day or $1,200 per month.
             On June 10, 2014, Parents requested an increase in their adoption
subsidy rate from $40 per day to $70 per day, i.e., the maximum subsidy paid by
CYS. Parents asserted that, prior to the adoption, CYS did not provide counseling
or education on RAD, treatment of the disorder, or where to find a specialist in
treating children with RAD. Child had begun exhibiting the following behaviors:
lack of age appropriate safety awareness; soiling and wetting inappropriately;
lying; defiance; self-harm; aggression toward siblings and pets; raising fists in
anger toward Parents; and destroying property. R.R. 263a. Child requires constant
supervision and alarms on his bed. Parents feared that without specialized therapy,
Child will never be able to care for himself and could end up in a residential
treatment facility. CYS refused to increase Parents’ subsidy, finding that their
current monthly subsidy of $1,200 was sufficient. R.R. 268a. Parents appealed,
and the ALJ conducted a hearing on November 20, 2014.
             Parents presented Sue Cohick, CYS’s administrator, as a witness.
Cohick explained that each county is responsible for establishing its foster care and
adoption subsidy amounts, which are approved by the Department. Notes of
Testimony, 11/20/2014, at 69 (N.T. __); R.R. 124a. Currently, the rates available
from CYS are $30 or $40 per day. A family’s subsidy is reviewed on an annual
basis. Cohick testified that other families in Adams County caring for a child with
RAD receive a subsidy from CYS of either $30 or $40 per day, depending upon
the severity of the diagnosis. Cohick opined that a child with an acute chronic or

                                         5
permanent medical condition or physical disability who requires intensive home-
based medical intervention on a 24-hour basis would receive the $40 rate. Cohick
testified that families are free to use the subsidy in any way they wish, for
whatever purpose they decide, with no oversight by CYS. Cohick explained that
because Parents received $40 per day while Child was in their foster care, that rate
continued after they adopted him.       This is consistent with the Department’s
regulations. If an adoptive family needs additional assistance with a child’s special
needs, CYS offers information on available post-adoption services such as respite
care, support groups and other services through the Statewide Adoption and
Permanency Network.
             Cohick acknowledged that in 2013 CYS paid a subsidy of $70 per day
to one family. This was for a paraplegic child unable to feed, clothe or bathe
herself. This child had such severe, life-threatening medical needs that Life Lion,
a medical helicopter transport service, moved its pickup location closer to the
child’s home in order to attend to her medical emergencies. However, effective
July 1, 2014, CYS extinguished the $70 daily rate.
             Following the hearing, the ALJ issued an adjudication recommending
that Parents’ appeal be denied. The ALJ found, based on Mrs. Myers’ testimony,
that in 2013 Parents earned $45,000 in taxable income plus $14,400 in non-taxable
adoption subsidy income for Child. The ALJ concluded that Parents had sufficient
resources to pay $200-$220 for Child’s biweekly visits to his psychologist; $350
every three months for visits to a neurologist in Philadelphia; and to pay for
babysitters and for family vacations. Noting that in 2013 the Department denied
Parents’ appeal of CYS’s refusal to increase Child’s adoption subsidy from $40 to
$70 per day, the ALJ held that the doctrine of res judicata prevented Parents from


                                         6
relitigating the terms of their adoption assistance agreement.8 The ALJ further
found that CYS had paid the $70 per day subsidy to a single family whose child
had severe medical needs and discontinued the payment in 2014 when the family
left Adams County.         Because Parents were receiving the maximum subsidy
available to foster parents, the ALJ held that increasing that rate for Parents would
violate 55 Pa. Code §3140.204(b)(1)(i). Parents appealed. On March 5, 2015, the
Department entered an order adopting the ALJ’s recommendation in its entirety.
Parents petitioned for this Court’s review.
              On appeal,9 Parents argue that the Department incorrectly focused on
whether the denial of their requested increase in Child’s subsidy was consistent
with the regulations.       Parents argue that the Department ignored substantial
evidence that Child’s needs were underestimated at the time of adoption and have
increased in severity over time, thereby warranting a renegotiation of the adoption
assistance agreement. Parents further contend that the Department erred by finding
that the maximum subsidy was $40 per day when the maximum subsidy in Adams
County was $70 per day at the time they appealed. Parents also argue that the
Department erred in finding that they did not supply sufficient financial
information to support their requested subsidy increase. Finally, Parents assert that
the Department erred in concluding that their current subsidy of $40 per day is
sufficient to incorporate Child into their family and cover unreimbursed medical
expenses.


8
 None of the documentation from the 2013 appeal is included in the record.
9
 Our review is to determine whether the Department’s adjudication is supported by substantial
evidence, 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).

                                               7
               Intervenor CYS counters that it correctly refused to increase the
adoption subsidy for Child because the Department’s regulation limited Parents to
a maximum subsidy of $40 per day. CYS also contends that the $40 per day
subsidy is sufficient to cover the costs of caring for Child.
               As noted, the Department’s regulation on adoption assistance
payments states:

               The amount of the adoption assistance payment may not exceed
               the foster care maintenance payment which would have been
               paid if the child for whom the adoption assistance payment is
               made were living in a foster family home.

55 Pa. Code §3140.204(b)(1)(i). CYS’s adoption assistance agreement, including
the one signed by Parents, echoes the regulation: “An adoption assistance subsidy
cannot exceed the maximum foster care maintenance payment established by
[CYS].” R.R. 273a. Parents do not dispute that they received a foster care
maintenance payment of $40 per day while Child was in their foster care. CYS’s
administrator testified that $40 per day is the maximum subsidy available in
Adams County.       Thus, the Department correctly held, in accordance with its
regulation, that the maximum adoption assistance payment available to Parents is
$40 per day.
               That CYS paid a subsidy of $70 per month to one family in 2013 does
not change the result. The child in that case was severely challenged by paraplegia
and, simply, a unique case. Although Child suffers RAD, he can talk, walk, feed
and clothe himself and be home-schooled, all without a full-time caregiver in
addition to Parents. Other children in Adams County diagnosed with RAD receive
either $30 or $40 per day depending upon the severity of the diagnosis. In any
event, assuming arguendo that $70 per day was the maximum available subsidy

                                           8
when Parents requested an increase on June 10, 2014, that rate would have only
been available to Parents for a few weeks before it was extinguished on June 30,
2014.
            In sum, because the Department correctly determined that its
regulation limited Parents’ adoption assistance payment to $40 per day, we need
not address Parents’ other issues. Accordingly, the order of the Department is
affirmed.

                                           ______________________________
                                           MARY HANNAH LEAVITT, Judge




                                       9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Todd and Stacey Myers,             :
                 Petitioners       :
                                   :
            v.                     :   No. 506 C.D. 2015
                                   :
Department of Human Services,      :
                 Respondent        :


                                 ORDER
            AND NOW, this 4th day of March, 2016, the order of the Department
of Human Services, Bureau of Hearings and Appeals, in the above-captioned
matter dated March 5, 2015, is AFFIRMED.

                                         ______________________________
                                         MARY HANNAH LEAVITT, Judge
