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Adoptive Family #1 v. Warren County

United States District Court, S.D. Ohio, Western Division

June 25, 2018

ADOPTIVE FAMILY #1 AND THEIR DAUGHTER A, et al., Plaintiffs,
v.
WARREN COUNTY, OHIO/WARREN COUNTY BOARD OF COMMISSIONERS, Defendant.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge

         Plaintiffs Adoptive Families #1 and #2 are families who have adopted children with special needs after serving them as foster parents. They seek to represent a class of all current and potential adoptive parents, and their adopted children, who are eligible to receive subsidies under Title IV-E of the Adoption Assistance and Child Welfare Act and who fall under the jurisdiction of Warren County Children Services. Plaintiffs allege that defendant Warren County Board of Commissioners (Warren County) is violating the First and Fourteenth Amendments to the United State Constitution and Title IV-E of the Adoption Assistance and Child Welfare Act, 42 U.S.C. § 670, et seq., by denying eligible children assistance and obstructing families' access to such assistance. This matter is before the Court on defendant Warren County's motion for judgment on the pleadings (Doc. 15), plaintiffs' memorandum in opposition (Doc. 18), and defendant's reply memorandum (Doc. 21).

         I. Complaint

         Plaintiffs' complaint alleges the following facts: Children in Warren County, and in the State of Ohio generally, who cannot safely remain in their own homes are placed in foster care, which is a temporary living situation. Children who cannot be placed in a "kinship care" arrangement with suitable relatives are placed in a licensed foster care setting, including foster homes. Foster parents receive subsidies from Warren County to help provide for the children in their care. The amount is determined by the county. This is a per diem amount, determined by the level of care the child requires. When a court determines that returning home is not in a child's best interest, the court may grant permanent custody to the local agency, and the children can become legally available for adoption. In some cases, foster children who become legally available for adoption are adopted by their foster parents. Warren County is charged with issuing adoption assistance payments to eligible children under state and federal law.

         Mother and Father of Adoptive Family #1 received their child A. as a foster care placement on May 16, 2013 when she was nine years old. She has been with them ever since and is now fourteen. A. has special needs because she was more than six years old when she became available for adoption, A. also has a social or medical history which includes repeated sexual abuse and that establishes a substantial risk of developing a developmental disability, developmental delay, mental illness, or medical condition. Child A. became legally available for adoption on September 29, 2014. At the time, defendant told Mother and Father #1 that A. was "unadoptable" and that if they did not adopt her, no one would. She had been in Family #1 's home for more than six consecutive months. Before her adoption was finalized, Mother and Father #1 asked about adoption assistance. They were told that "she doesn't qualify." Mother and Father #1 adopted A. on August 18, 2015.

         When they were fostering A., Mother and Father #1 received $25-$35 per day to help provide for her as a foster child. This allowed Mother #1 to work part-time, giving her more time to care for A. She and her husband thought this was in A.'s best interest. It also helped them cover activities for A. and the increased expenses of adding another person to the household.

         When they adopted A., Mother and Father #1 lost their foster care subsidy and were awarded $0 adoption assistance. Family #1 acquiesced to an arrangement where their daughter received no adoption assistance only because defendant had lied and misrepresented their child's eligibility for assistance.

         Adoptive Family #1 currently receives $0 in adoption assistance for A., despite her eligibility. If A. were still in foster care through Warren County today, she would receive a per diem amount totaling at least $700 per month, based on contemporaneous rates. A. is now a teenager but she is still afraid to be home alone because of her history of abuse. She is paranoid about checking locks on the doors and has had panic attacks when out with her family. Mother and Father #1 want to help their daughter feel more secure and reduce her anxiety.

         Mother and Father #1 want to send A. to a private, all-girls high school to enhance A.'s sense of security, but they do not think they will be able to afford it. This year, A. participated in sports at school, but Mother and Father #1 were not able to afford competitive swim team because it was too expensive. They want to get her back in more activities, including swim team, because it helps with her self-image and self-confidence. A. has recently been diagnosed with depression, which will mean therapy and medication for A. Mother and Father #1 think being back on the swim team will help with A's depression as well. Adoption assistance would also help Adoptive Family #1 meet A's anticipated everyday and future expenses. Mother and Father #1 fear retaliation by Warren County based on their past experience with the County.

         Mother and Father of Adoptive Family #2 received children B. and C. through foster care placement on September 26, 2013. Child B. was five years old and Child C. was six months old at the time. The children have been with Mother and Father #2 ever since and are now ten years old and five years old. Child B. has special needs. He has been diagnosed with ADHD, which is treated with medication and therapy. B. also struggles with interpersonal relationships and school. When Mother and Father #2 received C, he had a flat head due to neglect and was sick constantly. Since then, his health has improved. He is well-adjusted and very mature for his age.

         Children B. and C. both have special needs because they were adopted together as a sibling group. B. and C. also both have a social or medical history, which includes a family medical history of depression, bipolar disorder, dementia, and drug and alcohol use and a family social history of time in jail, that establishes a substantial risk of developing a developmental disability, developmental delay, mental illness, or medical condition. Additionally, C. was born premature and remained hospitalized for several weeks.

         Children B. and C. became legally available for adoption in June 2015. Mother and Father #2 adopted both boys on April 7, 2016. Mother and Father #2 had established strong emotional ties with B. and C. while they were in foster care.

         Before the adoptions were finalized, Mother and Father #2 asked about adoption assistance. Defendant told them that C. did not qualify because he did not have a diagnosis. Warren County declined to award them any assistance for C. Defendant told them that B. qualified for assistance and awarded the family $250 per month based on his diagnosis. Warren County limited the award to that amount because it was the most Adoptive Family #1 could receive without defendant having to contribute its own funds. Defendant did not consider the family's circumstances and B.'s needs when calculating the amount to award but based the amount solely on its intent to avoid paying out any County funds.

         When Mother and Father #2 were fostering B. and C, they received free daycare and $13 per day for each child to help provide for them. If B. and C. were still in foster care through Warren County today, they would each receive a per diem amount totaling at least $700 per month, based on contemporaneous rates. Adoptive Family #2 currently receives SO in adoption assistance for C. despite his eligibility. They currently receive $250 in adoption assistance for B., but this amount does not take the family's circumstances or B.'s needs into account. Family #2 acquiesced to this arrangement only because defendant had lied and misrepresented their child's eligibility to for assistance. An award of adoption assistance for C. and additional adoption assistance for B. would help the family pay for B.'s therapy, extra-curricular activities for B. and C, and tutoring and other current and anticipated future expense for B. and C. Mother and Father #2 fear retaliation by Warren County based on their past experience with the County.

         Plaintiffs bring this action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against defendant Warren County for violations of the Adoption Assistance and Child Welfare Act and for violations of plaintiffs' familial association and due process rights under the United States Constitution. Plaintiffs allege that defendant violated their rights under 42 U.S.C. § 673 when it denied adoption assistance to entitled children and obstructed plaintiffs' access to such assistance. Plaintiffs also allege that defendant violated their rights under the First and Fourteenth Amendments to the United States Constitution, including the right of familial association and their right to due process of law.

         II. Statutory framework for adoption of special needs children

         Title IV-E of the Social Security Act, 42 U.S.C. § 670 et seq., governs adoption assistance subsidies for adoptive parents. To receive federal funding under Title rV-E, states must develop a plan for adoption assistance and obtain approval of that plan from the United States Secretary of Health and Human Services. 42 U.S.C. § 671. A state with an approved plan "shall enter into adoption assistance agreements . .. with the adoptive parents of children with special needs." 42 U.S.C. § 673(a)(1)(A). A child with special needs is one who is available for adoption and who meets certain criteria that have traditionally made children less likely to be adopted. These criteria include, among others: the child is a part of a sibling group being adopted together, or is being placed in the same adoptive home as a sibling previously adopted; the child is a member of a minority, racial or ethnic group making it difficult to place the child for adoption; the child is six years old or older; or the child has been in the prospective adoptive home for at least six months and would experience severe separation anxiety if removed from the home and placed in another setting. See 42 U.S.C. § 673(c); OAC 5101:2-49-03.

         Adoption assistance payments are governed by § 673(a)(1)(B), which provides:

Under any adoption assistance agreement entered into by a State with parents who adopt a child with special needs, the State - -
(i) shall make payments of nonrecurring adoption expenses incurred by or on behalf of such parents in connection with the adoption of such child, directly through the State agency or through another public or nonprofit private agency, in amounts determined under paragraph (3), and
(ii) in any case where the child meets the requirements of paragraph (2), may make adoption assistance payments to such parents, directly through the State agency or through another public or nonprofit private agency, in amounts so determined.

42 U.S.C. § 673(a)(1)(B). Adoption assistance payments:

shall be determined through agreement between the adoptive parents and the State . . ., which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted, and may be readjusted periodically, with the concurrence of the adopting parents . . ., depending upon changes in such circumstances. ...

42 U.S.C. § 673(a)(3).

         Ohio has an approved state plan for adoption assistance and has agreed to be bound by all of the federal requirements under Title IV-E. Defendant Warren County administers adoption assistance subsidies through its public children services agency, Warren County Children Services. See OAC 5101:2-49-01. Warren County Children Services determines the initial and continuing eligibility for adoption assistance subsidies. Id.

         III. Legal Standard

         Courts apply the same analysis to motions for judgment on the pleadings under Rule 12(c) as they apply to motions to dismiss under Fed.R.Civ.P. 12(b)(6). See Warrior Sports, Inc. v. Nat 7 Collegiate Athletic Ass 'n,623 F.3d 281, 284 (6th Cir. 2010). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." JPMorgan Chase Bank, N.A. v. Winget,510 F.3d 577, 582 (6th Cir. 2007) (internal citation and quotation marks omitted)). However, the ...


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