Temporary Detention Order Not A Removal Order: Plaintiff Eligible For Foster-Care Funding

Even though a temporary detention order did not include a “contrary to the welfare” finding, as required by law, this did not preclude the plaintiff’s eligibility for Title IV-E foster-care funding because the temporary detention order was not an order removing the plaintiff from his home and “into foster care,” the Michigan Court of Appeals has unanimously ruled.

“Plaintiff was not removed from the home and placed into foster care by way of the November 11, 2014, [temporary detention] order; rather, he was apprehended and placed into a juvenile-detention facility because of alleged criminal acts,” Judge Patrick Meter wrote for the Court of Appeals in Ayotte v Dep’t of Health and Human Services (published opinion, Docket No. 339090). “Consequently, the requirement that the state obtain a judicial determination that it was contrary to the welfare of the child to remain in the home for purposes of Title IV-E foster-care funding eligibility was not triggered at this point.”

Rather, “[i]t was the November 13, 2014, order that indicated that plaintiff’s removal from the home and into care was justified based on adverse family circumstances,” the Court of Appeals said. “This order contained the requisite language and therefore plaintiff is eligible for Title IV-E foster-care funding.”

Court of Appeals Judges Kirsten Frank Kelly and Elizabeth Gleicher joined the opinion.

Foster-Care Funding

The 16-year-old plaintiff engaged in domestic violence and a temporary detention order was issued on November 11, 2014. The plaintiff entered a plea of admission to the delinquency petition on November 12, 2014 and was ordered to spend three days in a juvenile detention center.

Later in the day on November 12, 2014, the Michigan Department of Health and Human Services (DHHS) filed a child-protection petition, seeking removal of the plaintiff from his home due to his mother’s alleged substance abuse. The Arenac County Circuit Court took jurisdiction over the plaintiff on November 13, 2014 and ordered that he be placed with DHHS for care and supervision after he was released from the detention center.

DHHS initially determined that the plaintiff was eligible for Title IV-E foster-care funding under 42 USC § 670 et seq. due to his placement outside the mother’s home. Title IV-E establishes federal funding to support state foster-care systems and conditions funding on compliance with federal requirements. To be eligible for Title IV-E funding, a child must have been removed from the home of a relative “into foster care” and the removal and placement must meet, and continue to meet, the requirements of 42 USC 672(a)(2).

In November 2015, a Title IV-E specialist reviewed the plaintiff’s case. It was determined the plaintiff was no longer entitled to foster-care funding because the detention order that was issued did not include a “contrary to the welfare” finding.

The plaintiff’s guardian ad litem sought an administrative hearing on the matter. The administrative law judge ruled that DHHS had correctly denied continuing the plaintiff’s Title IV-E foster-care funding.

The plaintiff appealed to the Arenac County Circuit Court, which held that the administrative law judge had committed clear legal error. The trial court ruled the temporary detention order was not the first order of removal but, instead, was an arrest warrant. “The forms that are commonly used in all proceedings many of the boxes don’t apply to all of the proceedings, and the reason that it wasn’t checked on November 11th is it had no bearing on the November 11th proceedings,” the trial court explained.

DHHS appealed.

The Arguments

On appeal, the Court of Appeals scrutinized the requirement in § 672(a)(2)(A)(ii) that the child’s removal and foster-care placement be in accordance with a judicial determination that continuation in the home would be contrary to the child’s welfare. The Court of Appeals noted this requirement is found in the Code of Federal Regulations, 45 CFR 1356.21(c), which says: “The contrary to the welfare determination must be made in the first court ruling that sanctions (even temporarily) the removal of a child from the home. If the determination regarding contrary to the welfare is not made in the first court ruling pertaining to removal from the home, the child is not eligible for title IV-E foster care maintenance payments for the duration of that stay in foster care.”

Likewise, the Court of Appeals pointed out that Michigan’s FOM 902 (“Funding Determination and Title IV-E Eligibility”) provides that “[f]ederal regulations require the court to make a contrary to the welfare or best interest determination in the first signed court order prior to removing the child from his/her home for title IV-E eligibility. The court order must coincide with removal of the child.”

Referencing these applicable laws, DHHS argued the November 11, 2014 detention order was the first order pertaining to the plaintiff’s removal from the home. DHHS asserted that § 672(a) does not limit the requirement for a “contrary to the welfare” finding to only a removal order in a child-protection proceeding and that CFR 1356.21(c) does not distinguish between removal orders for delinquency purposes and removals for child-protection purposes. According to DHHS, the judge issuing the temporary detention order should have made a “contrary to the welfare” determination for Title IV-E funding purposes, even though that order placed the child in detention for allegedly committing a criminal act.

Meanwhile, the plaintiff maintained that DHHS’s argument ignored the plain language of § 672(a), which is the provision that CFR 1356.21(c) implements. According to the plaintiff, the federal mandate only requires a court to make the requisite Title IV-E eligibility finding when a child is removed from the home “into foster care.” The plaintiff claimed that, in this case, funding did not depend on a “contrary to the welfare” finding being made when the temporary detention order was issued because that order did not place plaintiff “into foster care.”

Detention Order Didn’t Trigger “Contrary To Welfare” Language

The Court of Appeals agreed with the plaintiff’s arguments.

“The plain language of 42 USC 672(a)(1) indicates that the state shall make foster-care maintenance payments on behalf of a child who has been removed from the home of a specified relative into foster care,” the Court of Appeals wrote. “The statute links the concept of ‘removal’ to the placement setting, i.e., foster care. … Foster-care maintenance payments may be made only on behalf of an eligible child who is in a foster-family home or in a child-care institution. … In addition, the statutory scheme specifically excludes ‘detention facilities’ from the definition of a child-care institution.”

According to the Court of Appeals, the plaintiff was not removed from the home and placed in foster care by way of the temporary detention order (first order). Instead, the detention order placed the plaintiff in a juvenile facility because of alleged criminal acts. Therefore, the requirement that the state obtain a determination that it was “contrary to the welfare” of the plaintiff to remain in the home for purposes of Title IV-E funding eligibility was not triggered at this point, the Court of Appeals explained.

Rather, it was the second order, issued November 13, 2014, that removed the plaintiff from the home and into foster care, the Court of Appeals said. “This order contained the requisite language and therefore plaintiff is eligible for Title IV-E foster-care funding. This reading is consistent with a decision reached by the United States Department of Health and Human Services Departmental Appeals Board in Virginia Dep’t of Social Servs, DAB No. 2379 (2011).”

In so finding, the Court of Appeals rejected DHHS’s assertion that there was “no distinction” about the type of order that must include the “contrary to the welfare” determination. “[I]n our opinion, waiting to consider whether remaining in the home is contrary to a child’s welfare until an investigation has determined the facts of the situation balances the goal of preventing unnecessary removals and placement into substitute care with the goal of looking toward what is in a child’s best interests,” the Court of Appeals wrote. “Indeed, mandating that a court make the contrary-to-the-welfare determination before it is sufficiently apprised of the situation would actually obscure the severity of removal and turn the safeguard of judicial oversight into a means of jeopardizing the child’s welfare.”

Here, the trial judge “did not find foster-care placement necessary until the issuance of the order on November 13, 2014, and appropriately, at that time, made a contrary-to-the-welfare finding such that Title IV-E payments are available,” the Court of Appeals concluded. The trial judge “explicitly found that it would be contrary to plaintiff’s welfare to be returned home, and he made this finding in the first order pertaining to plaintiff’s removal into foster care.”