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In re Appeal of McSweeney

Supreme Court of Vermont

March 29, 2019

In re Appeal of Sharon McSweeney

          Supreme Court On Appeal from Human Services Board February Term, 2019 Charles Gingo, Chair

          Richard Edward McCormick of Johnson Law Group International, PLLC, Burlington, for Petitioner-Appellant.

          Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jared C. Bianchi, Assistant Attorney General, Waterbury, for Respondent-Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. Petitioner challenges a Human Services Board decision that affirmed an adoption-assistance subsidy calculated by the Department for Children and Families (DCF) for petitioner's adopted son once he turned eighteen. We affirm.

         ¶ 2. The facts are not substantially disputed. Petitioner and her spouse adopted their son through DCF in 2003. As part of the adoption process, petitioner entered into an adoption-assistance agreement with DCF, which provided for a daily subsidy payment of $50.69. Per the agreement's terms, both the adoptive parent and DCF had to agree to any changes. The agreement contained the following provision concerning its termination:

          Termination will occur in any of the following circumstances:

D. when the child reaches the age of 18. If the child has a documented mental or physical handicap which warrants continuation, adoption assistance payments may be provided until the child reaches his or her 21st birthday. Payments past the 18thbirthday of the adopted child shall continue only upon waiver from the commissioner of the Department or designate . . . .

         ¶ 3. Shortly before the child turned eighteen, DCF notified petitioner that the existing agreement would terminate on the child's birthday. In the February 2017 notification letter, DCF explained that the child might be eligible for an "Over Age 18 Adoption Assistance Agreement" if the child had been diagnosed with a lifelong physical or mental disability, and it described the application process. In a March 2017 letter, DCF offered petitioner what it characterized as a "separate" and "over-age-18" adoption-assistance agreement at a daily rate of $27.59. The new rate was the maximum available standard rate for children in foster care. Petitioner appealed the amount of the subsidy to the Board.

         ¶ 4. The Board affirmed DCF's decision. As it explained, adoption assistance is a joint federal-state program, falling under both federal and state law and policy. Federal law provides that the amount of adoption assistance "shall be determined by agreement between the adoptive parents and the State or local agency administering the program" and that the amount may not "exceed the foster care maintenance payment which would have been paid" had the child been in a foster home. 42 U.S.C. § 673(a)(3). The subsidy ends when the child turns eighteen, "or such greater age as the State may elect under section 675(8)(B)(iii)" or turns twenty-one "if the State determines that the child has a mental or physical handicap which warrants the continuation of assistance." Id. § 673(a)(4)(A)(i).

         ¶ 5. The Board concluded that DCF's practice and policy was to allow for under- eighteen subsidies that might exceed the standardized foster care rate, depending on a child's needs, but to limit over-eighteen subsidies to the standardized foster care rate. It concluded that the agreement itself, as well as DCF policy, afforded DCF discretion as to whether to continue benefits beyond the age of eighteen.

         ¶ 6. The Board rejected petitioner's claim that she was legally entitled to continue receiving the same adoption subsidy that she had received prior to her son's eighteenth birthday because the continued benefits were essentially an extension of the (initial) adoption-assistance agreement, and subsidies should thus continue at the same (under-eighteen) rate. The Board noted that the agreement itself and DCF policy were silent about whether the over-eighteen assistance would continue at the same rate. But the question of whether assistance would continue at all was clearly left to DCF's discretion, and the under-eighteen adoption-subsidy agreement plainly stated that it would terminate when the child reached eighteen.

         ¶ 7. The Board found that DCF did in fact terminate the under-eighteen agreement here and offered a new and separate over-eighteen agreement, consistent with the terms of the under-eighteen agreement and with DCF policy. Accordingly, the Board affirmed DCF's decision. See 3 V.S.A. § 3091(d) ("The Board shall not reverse or modify Agency decisions which are determined to be in compliance with applicable law . . . ."); Fair Hearing Rule No. 1000.4D, Code of Vt. Rules 13 ...


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