Opinion
No. ED89361
December 26, 2007
Appeal from Circuit Court of Jefferson County, Hon. Gary Kramer.
John J. Ammann, Counsel for Appellant.
Sarah E. Ledgerwood, Counsel for Respondent.
Opinion
Introduction
Christopher and Renee Young (the Youngs) appeal from the circuit court's order affirming the decision of the Family Support Division of the Missouri Department of Social Services (Division) denying theYoungs' request for an adoption subsidy through the Behavior Foster Care (BFC) program. We affirm.
Factual and Procedural Background
In February 2001, Justin and Haylee, foster children and biological siblings then aged 6 and 4 respectively, were placed in the Youngs' care. In March 2003, the Youngs adopted Justin and Haylee. The Youngs received the basic adoption subsidy from the Division for both children from the date of the adoption. In December 2003, the Youngs adopted Brandon, Justin and Haylee's younger, biological brother. The Youngs entered into another subsidy agreement with the Division in December 2003 after Brandon's adoption, although no changes were made to the subsidy amounts the Youngs received for Justin and Haylee.
In March 2004, the Youngs requested placement of Justin and Haylee into the BFC program. The BFC program provides a higher monthly stipend to foster and adoptive parents of children with behavioral problems.
After the Youngs inquired into the program, Trish Sparks (Sparks), an adoption specialist with the Division, mailed the Youngs a referral packet with information and forms for the Youngs to complete. Once the Youngs returned the forms, Sparks sent the information to the BFC unit workers and "staffing" meetings were held on September 14, 2004 and October 12, 2004. Following the first staff meeting, the Youngs were asked to supply some additional documentation. On January 27, 2005, the Division denied the Youngs the BFC subsidy.
On February 1, 2005, the Youngs filed an application requesting a hearing to review the denial of the BFC adoption subsidy. On April 27, 2005, the Division conducted a hearing. At the hearing, Sparks testified she discussed the BFC program with the Youngs before Justin and Haylee were adopted and that the Youngs approached her about the program after Brandon's adoption. Sparks participated in the staffing meetings as part of the staffing team but was not familiar with the BFC program criteria. Sparks testified Marie Clark, a consultant for the Division, makes a recommendation to the team and the team makes the final decision on whether to accept a child into the BFC program.
Justin
Dr. David Lipsitz, a clinical psychologist, conducted a psychological evaluation of Justin in May 2004. Dr. Lipsitz diagnosed Justin with Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder, and Impulse Control Disorder. Dr. Lipsitz reported Justin becomes upset easily, is emotionally volatile, has difficulty coping, and has an exaggerated need for attention and affection. Lipsitz reported Justin will act out inappropriately in an attempt to gratify his needs and, as a result, frequently comes into conflict with others.
Rhonda Kane, a therapist, evaluated Justin in July and October 2004. Kane's report indicated she believed Justin was probably dangerous to others, was severely impulsive with consistent and persistent symptoms, and needs intense supervision.
Justin's school and daycare reported numerous incidents of problems with Justin over a three-year-period. One incident occurred at Justin's school in the year preceding the staff meetings in which Justin and another student were throwing rocks at each other. The school has an accommodation plan to address Justin's ADHD and behavioral issues through positive reinforcement and time-outs. The incidents reported from Justin's daycare in the year leading up the staff meetings included: (1) three incidents in September 2003 of Justin kicking or throwing things; (2) two incidents in October 2003 where Justin kicked or bit another child; (3) two incidents in 2004 where Justin shoved or punched Haylee; (4) being disrespectful to a teacher; (5) kicking and throwing things when asked to stop wrestling with a smaller child; and (6) slapping Brandon in the face while wrestling.
Renee Young testified Justin has asthma and takes several medications daily. Justin's asthma limits his activities which makes him angry and upset. Renee stated Justin is very aggressive and violent to others. Renee testified Justin cannot be reasoned with or comforted when he is angry. When angry, Justin throws things, punches, and kicks. The Youngs cannot go out socially as a family because Justin throws tantrums, breaks things, and hurts other people's children.
Renee testified additional incidents occurred at Justin's school and daycare that were not in the incident reports because the facilities do not write up every incident, particularly since Justin's behaviors are everyday problems. Renee stated Justin's behavior is better at school than at home and daycare because his aggression comes out more while playing than during the regimented school schedule.
Christopher Young testified he adjusted his work schedule so he can pick up the children right after school because it helps eliminate many of Justin's tantrums. Christopher stated Justin got into a physical fight with a neighbor boy in the fall of 2004 and recently "choke tagged" a boy three years younger than him. Christopher testified Justin no longer plays baseball because Justin argued with the coach, would throw things, and refused to play if he did not get his way. Christopher testified the children act better when they are supervised by him or Renee.
Haylee
Dr. Lipsitz conducted a psychological evaluation on Haylee in April 2004. Dr. Lipsitz diagnosed Haylee with ADHD and Impulse Control Disorder. Dr. Lipsitz found Haylee had problems with her primary support group and in her social environment. Kane reported Haylee was moderately impulsive, had mild emotional and conduct disturbance, and had mild oppositional behavior with consistent and persistent symptoms. Kane found Haylee to be possibly dangerous to others.
Haylee's school and daycare reported numerous instances in an approximately two year period. In the year preceding the staffing meetings, Haylee's school reported only one disciplinary incident in which Haylee stole a bottle of water. The incidents reported by Haylee's daycare in the year preceding the staff meetings included: (1) kicking a television screen; (2) wandering away from the group while waiting for the bus; (3) hitting another child in the head with rolled up paper; and (4) fighting with Justin. Renee testified the daycare and school do not write up every incident, particularly since Haylee's behaviors are everyday problems.
Renee testified Haylee is not allowed to play with other children alone because she has sexually acted out at home, daycare, and school. Renee testified Haylee is not allowed to wear dresses because she acts out sexually. Renee testified there has been only one incident of Haylee acting out sexually at home because she and Christopher do not let Haylee out of their sight. Renee stated Haylee cannot be trusted without constant supervision in any setting because she gets into things and steals. Renee testified Haylee also picks at sores and has used paperclips to pierce her ears.
Renee testified that since Justin and Haylee were placed in their home in February 2001, some of the children's behaviors have gotten better while others have gotten worse. Renee stated she has to have three babysitters watch the children at a time in case Justin throws a tantrum and to ensure Haylee is constantly being watched.
Marie Clark is the director of The Behavioral Institute. Clark has a master's degree in Psychology and a post-graduate certificate in mental and family therapy. Clark does not evaluate children but is a consultant that reviews the information presented at the staff meetings to determine if the children meet the criteria for the BFC program. Clark participated in the staff meetings for the Young children. Prior to the meetings, Clark reviewed the Young children's referral packets and the accompanying reports.
Clark stated when considering a child for the BFC program, the Division looks for behaviors beyond those that are typically seen for children in foster care and would be disruptive to the child's foster care or adoption placement. The Division looks for behaviors across all areas of the children's lives including at school, home, daycare, or wherever else the child interacts. Clark stated the Division looks "for behaviors that occur on a daily basis" and that the behaviors "need to be pretty frequent." Clark testified that while "significant behavior" usually means on a daily basis, the behaviors do not have to be daily but instead must be occurring on a regular basis. Clark stated she looks for behaviors that have occurred in the last 6 to 12 months, and that earlier reports are too old to support a finding of a current behavioral problem.
Clark testified Dr. Lipsitz's diagnoses did not, by themselves, qualify the children for the BFC program. Instead the Division looks at the children's specific behaviors. Clark classified many of Haylee's issues as symptoms of ADHD and not as behavior apart from ADHD. Although more than half of the children in the BFC program have ADHD, Clark testified children with ADHD who are accepted into the BFC program usually have a significant additional issue.
In addition, Clark classified some of Haylee's and Justin's issues raised by Dr. Lipsitz as therapeutic issues. Clark characterized therapeutic issues as those that need to be modified through therapy while behavioral issues are modified with various type of behavioral intervention. Clark found Kane's counseling reports for the children presented strictly therapeutic issues that were being addressed in therapy.
Clark also testified that Kane's reports lacked documentation supporting her assessment that Justin is probably dangerous and is consistently and persistently symptomatic, or that Haylee is defiant in different types of settings and injurious to other people frequently.
Clark testified the Division considers the parents' reports on the children's behaviors and that the Youngs did not indicate the behaviors were occurring on a regular basis. As Clark recalled, the Youngs stated at the staff meeting that they were successfully managing the children's problems. Clark stated the Division looks for daily occurrences first and they were not present in this case.
Clark testified some of the incidents reported by Justin's school and daycare supported a finding Justin had a behavioral problem, while others were not severe enough to be considered a problem. Clark considered the daycare reports but questioned whether the daycare had proper supervision because similar behavior was not occurring at school. Clark testified Justin was denied for the BFC program because most of the discipline incident reports for Justin were for minor incidents and were too old to reflect Justin's present condition, the behaviors were not occurring across all settings, and the behaviors were not occurring frequently enough.
Clark considered the incident reports on Haylee but found that many of them were not serious enough to qualify her for the BFC program. Clark also noted there was a lack of documentation that Haylee had been sexually acting out. Clark denied Haylee's BFC referral due to a finding that the behaviors were not severe enough or currently occurring frequently enough and across all settings.
On November 9, 2005, the Division affirmed the denial of BFC benefits. The Division held little evidence supported a finding that the children's behavioral problems were at the level of severity or occurred consistently enough to meet the BFC program criteria.
On September 11, 2006, the Youngs filed a petition in the circuit court seeking review of the Division's decision. On January 16, 2007, the circuit court affirmed the Division's decision, finding that although a different ruling would have been appropriate, the court was constrained to find the Division's decision was supported by substantial competent evidence and was not clearly against the weight of that evidence.
Points on Appeal
In their first point, the Youngs argue the Division erred in denying them the BFC adoption subsidy because the denial was contrary to law in that the Division relied on factors not stated in any statute or regulation or in the Child Welfare Manual (Manual) by requiring that the children's behavior problems must be severe and occur daily across all settings.
In their second point, the Youngs argue the Division erred in denying them the BFC adoption subsidy because the denial was not based on competent and substantial evidence based on the whole record, in that the evidence showed the children had significant behavioral problems and met almost all of the criteria for the BFC rate.
In their third point, the Youngs argue the Division erred in denying them the BFC adoption subsidy because the denial was unreasonable, arbitrary, and capricious, in that there are no formal rules promulgated to guide the decision makers.
Standard of Review
On appeal, we review the Division's decision rather than the judgment of the circuit court. Reed v. Missouri Department of Social Services, Family Support Division, 193 S.W.3d 839, 841 (Mo.App.E.D. 2006).
The Division's decision is presumed to be correct. Reed, 193 S.W.3d at 841. We review the record in the light most favorable to the administrative decision, giving the decision the benefit of all reasonable inferences. Hutchings v. Roling, 151 S.W.3d 85, 88 (Mo.App. E.D. 2004). We will uphold the agency's decision unless it is not supported by competent and substantial evidence on the record as a whole or is unreasonable, arbitrary, capricious, or an abuse of discretion.Hutchings, 151 S.W.3d at 88.
The Division's factual findings are reviewed to determine whether they are supported by substantial evidence upon the record as a whole.Hutchings, 151 S.W.3d at 88-89. When the agency decision involves the interpretation of law and application of the law to undisputed facts, the court is not bound by the interpretation of the agency and the court must form its own independent conclusions. Reed, 193 S.W.3d at 841. The agency's interpretation of its own regulations, however, is accorded some deference. Reed, 193 S.W.3d at 841-42.
Discussion
On appeal, the Youngs argue the Division erred in denying them the BFC adoption subsidy rate for Justin and Haylee because the Division and its consultant relied on factors not stated in any statute, regulation, or in the Manual by requiring the children's behaviors be "severe," "daily," and "across all settings."
Section 453.074 states the Division, in administering the subsidy program, shall "[p]rovide all petitioners for adoption with the rules and eligibility requirements for subsidies[.]" The Manual sets forth a list of characteristics a BFC program candidate may exhibit. This list includes: (1) behaviors which, if not modified, could result in the youth being designated as a status offender; (2) a history of irresponsible or inappropriate sexual behavior, which has resulted in the need for extraordinary supervision; (3) threatening, intimidating, or destructive behavior which is demonstrated by multiple incidents over a period of time; (4) problems of defiance when dealing with authority figures; (5) significant problems with peer relations; (6) significant problems at school that affect academic achievement or social adjustment; (7) significant problems with lying, stealing, or manipulating; (8) significant problems with temper control; (9) mild substance abuse related problems; (10) oppositional behavior which contributes to placement disruptions and an inability to function productively with peers, parent figures, birth family; (11) any of the above behaviors, coupled with medical problems; or (12) any of the above behaviors displayed by one or more children of a sibling group, qualifying the entire sibling group for placement together, if appropriate. Child Welfare Manual, § 4, ch. 14, 6-7.
All statutory references are to RSMo 2000, unless otherwise indicated.
Contrary to the Youngs' assertion, Clark did not create and apply new criteria for eligibility to the BFC program but instead was interpreting the criteria already in place. The determination of whether a child's behaviors are substantial enough to qualify for the BFC program is inherently evaluative. While the Manual's guidelines are a list of behaviors that may qualify a child for the BFC program, they must be read in the context of the purpose of the BFC program and the nature of the task at hand. It is important to note that the BFC program does not just provide additional subsidies to parents, but is intended to find foster homes for children whose behavioral problems are severe enough that they have disrupted traditional foster care placement. See Child Welfare Manual, § 4, ch. 14, 1-8.
The Manual states BFC children "need greater structure, supervision, and are less able to assume responsibility for their daily care." This suggests a BFC child's behaviors should be evaluated in the context of childhood behaviors. Most children exhibit, to some degree, many of the behaviors set forth in the guidelines. The Division is charged with the task of determining whether a particular child's behavior is sufficiently beyond the norm to justify BFC placement. To do this, the Division must consider not only the nature of the behavior but also the severity and frequency of the behavior. In this case, Clark used the words "severe" and "daily" not as new criteria but to determine whether Justin and Haylee's behaviors should be considered significant problems under the guidelines.
Also, Clark's testimony that the Division looks for behaviors that occur across all settings is consistent with the guidelines, in that the guidelines state the Division is looking for behavioral problems affecting the child's peer relations, academic achievement and social adjustment at school, ability to deal with authority figures, and the ability to function productively with peers, parent figures, and others. While the guidelines do not use the term "across all settings," the criteria as a whole indicate the candidate should display problems in a multitude of settings. Based on the foregoing, point I is denied.
Next, the Youngs argue the Division erred in denying them the BFC subsidy because the denial was not based on competent and substantial evidence in that the evidence showed the children had significant behavioral problems and met almost all of the criteria for the BFC program.
We review the agency's factual findings to determine whether they are supported by substantial evidence upon the record as a whole. Hutchings, 151 S.W.3d at 88-89. Evidence is substantial if it is competent evidence from which a trier of fact can reasonably decide the case. Id. at 88. We review the record in the light most favorable to the administrative decision, giving the decision the benefit of all reasonable inferences.Id. at 88.
The Youngs argue the evidence in this case is not in dispute in that the Division admits the children have behavior problems and instead argue the problems are not severe enough for the children to qualify for the BFC program. The Youngs contend the incident reports are only a representative sample of the children's behavioral problems and that Renee Young testified the behaviors occur daily, in all settings, and that they did not get a written report every time there was a problem. The Youngs argue the hearing officer should not have relied on Clark's testimony because Clark (1) never evaluated the children, (2) was misinformed about several material facts, and (3) admitted many of the children's behaviors were recent and indicative of behavioral problems.
It is the function of the administrative tribunal to determine the credibility of the witnesses. Bollinger v. Wartman, 24 S.W.3d 731, 733, (Mo.App.E.D. 2000). The hearing officer can choose to believe all, part, or none of a particular witness's testimony. Bollinger, 24 S.W.3d at 734. As such, the hearing officer could rely on Clark's testimony and we are not in the position to reevaluate the credibility of a witness. Id. at 733.
The crux of Clark's testimony was that the children were denied placement into the BFC program because their recent behaviors were not severe enough, frequent enough, or across all settings. The record indicates that in the one-year period preceding the staff hearings, the children's schools reported only one disciplinary incident for each child.
The daycare center reported several incidents for both children, approximately 10 for Justin and 4 for Haylee, in the same one-year period. The school and daycare reports combined equate to an average of one or less documented incident per month for each child. When considered in the context of childhood behaviors, the sheer number of incidents does not automatically lend itself to the conclusion the children have significant behavioral problems. In addition, many of the reported incidents were arguably within the realm of normal childhood behaviors. While we do not seek to minimize the children's behaviors and the difficulties they present, viewing the evidence in the light most favorable to the Division's decision, we cannot say the Division's finding that the reported conduct was insufficient to rise to the level necessary under the BFC program was not supported by competent and substantial evidence.
The Youngs also contend the children qualify for the BFC program under the last two criteria which provide a BFC candidate may have (1) any of the behaviors coupled with medical problems or (2) any of the behaviors, so long as they are displayed by one or more children of a sibling group. Child Welfare Manual, § 4, ch. 14, 6-7. The Youngs argue the children qualify because (1) Justin has a medical condition, i.e., asthma, and several of the other listed behaviors, and (2) the qualifying behaviors are exhibited by one or more children in the sibling group. To meet either of these criteria, however, the Division must first find the children's behaviors qualify under the behavioral criteria. Based on the record, the Division could have found the children's behaviors were not sufficiently problematic to qualify. Viewing the evidence in the light most favorable to the Division's decision, we cannot say the Division's denial of benefits under these criteria was not supported by competent and substantial evidence. Point II is denied.
In its third point, the Youngs argue the Division erred in denying the Youngs the BFC adoption subsidy because the denial was unreasonable, arbitrary, and capricious, in that there are no formal rules promulgated to guide the decision makers.
Section 453.073 authorizes the Division to grant subsidies to children and gives the Division considerable discretion in determining the subsidy amount. This section provides:
Determination of the amount of monetary need is to be made by the division at the time of placement, if practicable, and in reference to the needs of the child, including consideration of the physical and mental condition, and age of the child in each case; provided, however, that the subsidy amount shall not exceed the expenses of foster care and medical care for foster children paid under the homeless, dependent and neglected foster care program.
Section 453.073.1.
The Youngs argue the Division is required to promulgate rules under Section 453.074, which states the Division shall "[p]rovide all petitioners for adoption with the rules and eligibility requirements for subsidies[.]" The language of the statute does not require the Division to promulgate rules, rather it requires the Division to provide the existing rules and eligibility requirements for subsidies to parents. The statute's purpose is to ensure that adoptive parents are informed of the subsidies available and the requirements for obtaining those subsidies. This purpose can be fulfilled without the Division creating rules through the provision and consistent implementation of the Manual.
The Division would assist children and their foster and adoptive parents by providing more extensive information as to the availability of benefits and their eligibility requirements particularly in terms of procedural and evidentiary requirements.
The agency's decision in this case is supported by competent and substantial evidence on the record as a whole. The denial was not unreasonable, arbitrary or capricious for the lack of promulgation of formal rules. Point III is denied.
Conclusion
The judgment of the circuit court is affirmed.