Editor’s note: This piece from the SCOV Law Blog is by Elizabeth Kruska.
In re Appeal of Sharon McSweeney 2019 VT 25
[T]his case seems like it’s about adoption but it’s really about statutory construction and administrative agency authority.
There’s a federal law that provides for assistance with adoptions. If a child is adopted through the Department for Children and Families, DCF has a pool of federally provided funds available to provide subsidies to the adoptive parents until the child turns 18. This makes sense; kids aren’t cheap, and to help ease some of the financial strain an adoptive parent may feel by adopting a child, there’s some support available.
This ends when the child turns 18, although it’s possible for some sort of subsidy to continue until the child turns 21 if the child has a mental or physical disability. Under the law, it’s completely within the discretion of DCF to provide this additional subsidy, and the amount of the subsidy. In order to get this, DCF provides a notice to the adoptive parent prior to the child’s 18th birthday, and the adoptive parent needs to apply for the continued subsidy.
At the time of this case, the adoption subsidy amount was around $50 a day. There is another relevant amount here, which is the foster care assistance amount, and which was about $27 a day. DCF determined that for its “over-18” payments, it would set the amount at the same level as the foster care assistance amount, or $27 a day.
In this case, the petitioner adopted a child through DCF in 2003, and it would appear, received an adoption subsidy to help with the care of the child. Shortly before the child’s 18th birthday, she received notice from DCF that the subsidy would stop, but that she could apply for over-18 assistance. She did that. However, she was dissatisfied with the fact the amount decreased to the foster care assistance amount, rather than the adoption subsidy amount.
The petitioner appealed to the Human Services Board. The Human Services Board rejected her appeal, and found that it was within DCF’s discretion about whether assistance would continue at all. Because the board found that the agency’s decision complied with applicable law, it upheld the decision.
The petitioner appealed to the Supreme Court, who affirmed the Human Services Board’s decision.
She argued there not that the reduction of the amount was contrary to law, but that DCF unilaterally modified the amount. Her position was that the amount should have been negotiated, not just set by DCF.
SCOV disagrees. Under the applicable federal statute, Congress gave individual states discretion to provide benefits to kids over 18. Since it made this discretionary, it doesn’t make a lot of sense to conclude that Congress would have meant to tell the states what amounts they have to provide. In other words, Congress sets the floor at providing subsidies until age 18, and then says, “Hey, States, go ahead and provide more if you feel it’s appropriate til the child turns 21.” If Congress said the states had to provide a certain amount past age 18, but still gave discretion about whether to do it or not, it would deter states from doing over-18 agreements at all. And that doesn’t make a whole lot of sense.
So, SCOV respectfully affirms the Human Services Board.
