National Adoption Awareness Month is a good opportunity for us to report on another victory in an adoption matter the firm handled this year.
We filed a request for a state hearing with the California Department of Social Services (CDSS) on behalf of a family who was denied adoption assistance benefits for two children they were adopting out of the foster care system. Our clients previously adopted three children after which they learned the children had two younger biological siblings who had been placed in the foster care system. Our clients become foster parents to the two young siblings, but the juvenile court later reunited the young siblings with their biological father. Unfortunately, the father took the children out of the country and abandoned them. Our clients fought to have the children returned to the U.S. and placed back into their care to be adopted.
Prior to finalizing the adoptions, a request was made to the county child welfare department to make a determination as to whether the children were eligible for Adoption Assistance Program (AAP) benefits. AAP provides financial and medical coverage to facilitate the adoption of children who would have otherwise been placed or remained in long term foster care. Congress enacted the federal Adoption Assistance and Child Welfare Act in 1980, which provided federal incentives to states with the intent to encourage the placement of children into stable and permanent homes. CDSS administers the entitlement program in California.
Under California law, “[t]o be eligible for state/non-fed AAP benefits, the child must be the subject of an agency adoption, relinquished to a California private or public adoption agency, and would have otherwise been at risk of dependency as certified by the responsible public child welfare agency.” (CDSS All County Letter 16-38.) CDSS has provided guidance to the counties on determining whether a child is eligible for AAP benefits. According to CDSS, “the child would need to have been at risk of dependency had the parent not made a plan for adoption by relinquishing their child to a licensed adoption agency…and there was a substantial risk to the child to support a petition to the court to detain the child as a dependent of the court. (ACL 16-38, p. 6.)
In our case, the county child welfare department decided that the children were not at risk of dependency because the county had not opened a CPS case when they were returned to the United States. They also relied on the fact that there was a temporary guardianship in place, with a plan by our clients to adopt the children, to justify their decision to deny “at risk” status.
We requested a state hearing. The California Welfare and Institutions Code Section 10950 affords the right to a hearing to “any applicant…for public social services…dissatisfied with any action of the county department relating to his or her application”. We argued that the children clearly were “at risk” of going back into the foster care system, were it not for the adoption by our clients. The county erred in denying “at risk” status because the law did not permit them to take into consideration the temporary guardianship and the fact that the children were being adopted. The fact that the county did not open a CPS case also was not grounds to deny “at risk” status. The law requires that a child’s circumstances be considered at the time of their relinquishment for adoption and without consideration of the planned adoption.
The matter was set for a hearing in front of an administrative law judge. However, after briefing the issues, but before a full evidentiary hearing was held, the county changed its position and agreed that the children met the qualification requirements for AAP!
This case is just another example of how some counties are misinterpreting the law governing AAP and denying needed benefits to children who have been relinquished for private adoption. We previously filed civil writ of mandate proceedings in Sacramento County Superior Court after unsuccessful state hearings in front of CDSS. In this case, we were able to point to the court’s interpretation of the relevant law in those prior cases to convince the county to change its position. However, guidance is needed from CDSS so that counties have clearer direction on what is required by law when it comes to AAP eligibility decisions. Families should not be forced to choose between finalizing the adoption of their child and the delay involved in fighting for benefits their children are entitled to under the AAP program.
