Despite 'Rosales,' Administration Seems Determined to Leave Some Kids Behind

by Yolanda Arias

Enedina Rosales already had raised her children. A working grandmother, she expected to be visited by her grandchildren on weekends -- not have to rear one of them. But that's what she found herself doing all over again. Five-month-old Anthony had been removed from his parents' home, where he'd been physically abused. Due to the baby's respiratory problems that required frequent trips to the hospital, Enedina lost her job. She applied for federal foster care benefits.
She was denied these benefits and had to turn to welfare for assistance, which provided less money.
Why was this caring grandmother initially denied foster care benefits that would have gone for Anthony's care had he been taken in by a stranger? Because the federal agency that controls the administration of federal foster care benefits, the Department of Health and Human Services, erroneously interprets the Social Security Act in a restrictive manner that makes many children placed with relatives unable to qualify. As will be discussed later, even after several court decisions saying its interpretation is wrong, the department refuses to let go.
California's Department of Social Services followed the federal agency's restrictive interpretation. Both agencies based eligibility for federal foster care benefits on the income and assets of the abusive parent or relative from whom the child was removed ("the home of removal") rather than on the neediness of the child in the home of the relative with whom he or she was placed by the child protection agency (the Department of Children and Family Services of Los Angeles County). Federal foster care was also denied to children placed with relatives if Children and Family Services didn't initiate formal removal proceedings within six months of the child's physical removal from the abusive home.

Unfortunately, it is all too common for Children and Family Services to take a child from an abusive home, put him or her in the care of a relative, and then fail to timely file a removal petition, effectively depriving the child of federal foster care benefits. If the child was placed with a stranger, that stranger would get state foster care benefits to cover the cost of caring for the child, but relatives could not, forcing many to apply for welfare instead.

A case in the state Court of Appeal, Land v. Anderson, 55 Cal.App.4th 69 (1997) struck down the restrictive interpretation, but the Department of Health and Human Services would not honor it. California then enacted a statute that prevented any payment under Land until there was federal reimbursement, and required the state to pursue federal funding. California reluctantly sued the Department of Health and Human Services, and Rosales, represented by the Legal Aid Foundation of Los Angeles, joined in the suit.

When the federal court, in California v. DHHS, deferred to the federal government's interpretation and granted summary judgment for the Department of Health and Human Services, California gave up. But Rosales did not. When the state refused to appeal that decision, Rosales appealed to the 9th U.S. Circuit Court of Appeals. Rosales v. Thompson 321 F.3d 835 (9th Cir. 2003) held that the federal agency's interpretation of the law was "by every measure" unreasonable. Further, the court stated that the secretary's practice "undermines the statutory protections for foster children that Congress intended to provide." The court added that "like those who believed the Earth was flat, the Secretary [of Health and Human Services] cannot continue to adhere to an outmoded interpretation in the face of data to the contrary."

As a result of the decision in the 9th Circuit, the Department of Health and Human Services was required to approve California's amended state plan that opened the door for federal financial participation in cases such as that of Rosales.

In Los Angeles County alone, the dependency court has placed more than 30,000 abused and neglected children with relatives. Under Rosales, many of these children are now eligible for federal foster care benefits. Both the federal government and state contribute to the payments, and the parents are required to repay the government for foster care payments.

Sounds like a happy ending, right? Not quite. As mentioned before, the Department of Health and Human Services insists on following its interpretation that hurts abused and neglected children and the relatives who care for them. The President's Fiscal Year 2005 budget includes a proposal to have Congress amend the Social Security statute to "come into accord with the Department's long-standing policy" and return to the "home of removal" standard that was rejected by the courts.

Apparently, the Bush administration is unwilling to admit that the earth is round, even if abused and neglected children lack the funds necessary to nurture a full recovery. If the administration is committed to making certain that no child is left behind, it should ensure that children in California and across this nation receive the assistance to which they are entitled.

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Yolanda Arias is the directing attorney of the Government Benefits Unit of the Legal Aid Foundation of Los Angeles. This commentary originally appeared in the Friday, March 19, 2003 Daily Journal.