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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JULIE ARTHUR and DAVID ARTHUR,
on their own behalf;
J.T.J., J.A.V., J.D.V, by their next friend
and grandmother, Julie Arthur,
Plaintiffs,
v.
DIRECTOR, CENTRAL ELIGIBILITY
UNIT, INDIANA DEPARTMENT OF
CHILD SERVICES, in her official
capacity,
Defendant.
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No. 1:15-cv-1718
Complaint for Declaratory and Injunctive Relief
Introduction
1.
J.T.J., J.A.V., and J.D.V. are minor children with profound disabilities. They all have the
same mother whose parental rights have been terminated as have the paternal parental rights of
brothers J.A.V. and J.D.V. Paternity was never established for J.T.J. They have been placed by
the Indiana Department of Child Services (“DCS”) with their grandmother, Julie Arthur and her
husband, David Arthur. Julie Arthur and David Arthur are foster parents to the children and,
because of the severe disabilities of the children, DCS has approved of foster payments of
$145.72 per day for the children, far in excess of the per diem for foster children who are not
disabled and who are not in need of therapeutic foster care. Such payments are essential to offset
the necessary expenses of the children as well as to offset the loss of income to the Arthur
household as Julie Arthur has had to quit her job to take care of the children. Julie Arthur and
David Arthur desire to adopt the three children and DCS has approved of the adoption.
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However, upon the adoption foster care payments will cease and although DCS can authorize
and pay adoption assistance payments to the children, the Director of DCS’ Central Eligibility
Unit (“CEU-DCS”), who has the responsibility of establishing, after negotiation, adoption
assistance payments, is only willing to pay a total of $52 a day for the three children. This sum
will render it impossible for the Arthurs to adequately and appropriately care for the children and
violates the State’s duty under 42 U.S.C. § 673(a)(3), to “take into consideration the
circumstances of the adopting parents and the needs of the child being adopted” in computing the
adoption subsidy. The actions and inactions of the CEU-DCS are therefore unlawful and
appropriate injunctive and declaratory relief should issue.
Jurisdiction, cause of action, venue
2.
This Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331.
3.
Venue is proper in this district pursuant to 28 U.S.C. § 1391.
4.
Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and
28 U.S.C. § 2201 and § 2202.
5.
This case is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color
of state law, of rights secured by the laws of the United States.
Parties
6.
Julie Arthur is an adult resident of Greene County, Indiana.
7.
David Arthur, Julie Arthur’s spouse, is an adult resident of Greene County, Indiana.
8.
J.T.J., J.A.V., J.D.V. are minor children who are placed by DCS with Julie and David
Arthur as foster children.
9.
The Director of the Central Eligibility Unit of the Indiana Department of Child Services
is the duly appointed head of the unit within the agency that is responsible for the administration
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and determination of eligibility for adoption assistance payments under Title IV-E of the Social
Security Act.
Legal background
10.
Title IV-E of the Social Security Act, 42 U.S.C. § 670, et seq., provides for federal
funding for the purposes of foster care and adoption assistance to states which have submitted,
and have had approved, state plans to the federal government.
11.
Indiana has submitted such plans, agreeing to be bound by the requirements of Title IV-
E, and has received the federal funding provided by Title IV-E, which funding is used for,
among other things, foster care and adoption assistance payments.
12.
DCS is the single state agency responsible for administering the funds received under
Title IV-E by the State of Indiana. Ind. Code § 31-25-2-8(a)(2).
13.
42 U.S.C. § 672 provides for foster care maintenance payments on behalf of eligible
children who have been removed from relative homes and placed into foster care through a State
agency, in Indiana the Department of Child Services.
14.
The foster care maintenance payments, defined by 42 U.S.C. § 675(4)(A), are defined as,
among other things, payments “to cover the cost of (and the cost of providing) food, clothing,
shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with
respect to a child, and reasonable travel to the child’s home for visitation.”
15.
42 U.S.C. § 673 provides for the entering into of adoption assistance agreements
providing for payments to be made for special needs children with the payments continuing after
the child’s adoption.
16.
Specifically, 42 U.S.C. § 673(a) provides that:
(1)(A) Each State having a plan approved under this part shall enter into adoption
assistance agreements (as defined in section 675(3) of this title) with the adoptive parents
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of children with special needs.
(B)
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.
*
*
*
(3)
The amount of the payments to be made in any case under clauses (i) and (ii) of
paragraph (1)(B) shall be determined through agreement between the adoptive parents
and the State or local agency administering the program under this section, 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 (which may be specified in the adoption assistance agreement),
depending upon changes in such circumstances. However, in no case may the amount of
the adoption assistance payment made under clause (ii) of paragraph (1)(B) exceed the
foster care maintenance payment which would have been paid during the period if the
child with respect to whom the adoption assistance payment is made had been in a foster
family home.
17.
Indiana has, through regulations, established that:
A child shall be considered to be a special needs child, under the Indiana adoption
assistance program, if the child meets each of the following criteria:
(1) The county office of family and children has determined that the child cannot or
should not be returned to the home of the child's parent or parents and that the parent or
parents have signed or will sign a consent to adoption regarding the child or that parental
rights have been or will be terminated by a court in accordance with IC 31-35.
(2) One (1) of the following conditions exists:
(A) The child is two (2) years of age or older.
(B) The child is a member of a sibling group of two (2) or more children of which
at least one (1) is two (2) years of age or older and who will be placed with the
sibling group in the same home.
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(C) The child has a medical condition or physical, mental, or emotional disability
as determined by a physician licensed to practice in Indiana or another state or
territory.
(3) Reasonable but unsuccessful efforts must be made to place the child in an appropriate
adoptive home without providing adoption assistance. Reasonable efforts include, but are
not limited to, the following:
(A) Photo listing the child with the Indiana adoption resource exchange for a
minimum of six (6) months.
(B) Inability to recruit appropriate, interested adoptive parent or parents who are
able to meet the child's needs without the use of adoption assistance.
Reasonable efforts need not be made to place the child without adoption assistance if to
do so would be against the best interests of the child because of such factors as the
existence of significant emotional ties with prospective adoptive parents while in the care
of such parents as a foster child.
465 Ind. Admin. Code 2-7-2.
18.
To assist with the interpretation of states’ duties under Title IV-E of the Social Security
Act, the Department of Health and Human Services, through its Children’s Bureau, has created
the Child Welfare Policy Manual that provides, in relevant part:
a.
“The circumstances of the adopting parents must be considered together with the
needs of the child when negotiating the adoption assistance agreement. Consideration of
the circumstances of the adopting parents has been interpreted by the Department to
pertain to the adopting family’s capacity to incorporate the child into their household in
relation to their lifestyle, standard of living and future plans as well as their overall
capacity to meet the immediate and future needs (including educational) of the child.
This means considering the overall ability of the family to incorporate an individual child
into their household.”
Child Welfare Policy Manual 8.2A.2, Question 1, available at http://www.acf.hhs.gov/
cwpm/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=81 (last visited Oct.
27, 2015).
b.
“The amount of the adoption assistance payment cannot exceed the amount the
child would have received if s/he had been in a foster family home, but otherwise must be
determined through agreement between the adoptive parents and the State or local title
IV-E agency. Unlike other public assistance programs in the Social Security Act, the title
IV-E adoption assistance program is intended to encourage an action that will be a
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lifelong social benefit to certain children and not to meet short-term monetary needs
during a crisis. Further, the adoptive parents' income is not relevant to the child's
eligibility for the program.
Title IV-E adoption assistance is not based upon a standard schedule of itemized needs
and countable income. Instead, the amount of the adoption assistance payment is
determined through the discussion and negotiation process between the adoptive parents
and a representative of the State agency based upon the needs of the child and the
circumstances of the family. The payment that is agreed upon should combine with the
parents' resources to cover the ordinary and special needs of the child projected over an
extended period of time and should cover anticipated needs, e.g., child care. Anticipation
and discussion of these needs are part of the negotiation of the amount of the adoption
assistance payment.”
Child Welfare Policy Manual 8.2D.4, Question 1, available at http://www.acf.hhs.gov/
cwpm/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=54#673 (last visited
Oct. 27, 2015).
c.
“If a State’s foster care payment schedule includes higher level-of-care rates that
are paid across-the-board for certain children, the State may pay up to that amount in
adoption assistance if that specific child would have received the higher level-of-care rate
in foster care.
Child Welfare Policy Manual 8.2D.4, Question 4, available at http://www.acf.hhs.gov/
cwpm/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=54#673 (last visited
Oct. 27, 2015).
19.
The adoption assistance agreement must “[b]e signed and in effect at the time of or prior
to the final decree of adoption.” 45 C.F.R. § 1356.40(b)(1).
Factual allegations
20.
The Central Eligibility Unit is the unit within DCS that is charged with the responsibility
of, among other things, determining, after negotiation, the amount of adoption assistance
payment to be paid pursuant to Title IV-E of the Social Security Act for the benefit of special
needs children who are adopted.
21.
J.T.J. was born in 2008. He is currently 6 years old. His mother was Julie Arthur’s
daughter. His mother’s parental rights have been terminated in a judicial action in Indiana state
court after the mother voluntarily agreed to terminate parental rights and his father has never
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been identified so no paternity was ever established.
22.
J.A.V. was born in 2011. He is currently 3 years old. His mother was Julie Arthur’s
daughter. The parental rights of both of his parents have been terminated in an action brought in
Indiana state court after both parents voluntarily agreed to terminate their parental rights.
23.
D.V.J. was born in 2013. He is currently 2 years old. His mother was Julie Arthur’s
daughter. The parental rights of both of his parents have been terminated in an action brought in
Indiana state court after both parents voluntarily agreed to terminate their parental rights.
24.
All three of the children are wards of the DCS pursuant to Child in Need of Services
proceedings brought in Indiana state court.
25.
All three of the children suffer from severe disabilities:
a.
J.T.J. was born addicted to drugs. He suffers from RAD (Reactive attachment
disorder), ODD (Oppositional defiant disorder), ADHD (Attention-deficit hyperactivity
disorder), and ICD (Impulse control disorder). As a result of these conditions his
behavior frequently becomes out of control. Although he is in the first grade he has had
to be hospitalized as an in-patient at a psychiatric facility. He is not allowed to ride the
bus because of his behavior and he has been threatened with expulsion from school. He
also suffers from asthma that requires daily inhaler and nebulizer treatment. In addition
to having to transport him to and from school Julie Arthur must also transport him to
frequent therapy sessions and medical appointments. He is on medication and he is not
able to sleep until 11 p.m. every night, even though he must rise early for school.
b.
J.A.V. was born at 22 weeks. He does not walk or talk to any degree. He is
significantly delayed for his age. He has Pica disorder, a craving to eat non-food items,
including dirty diapers. He has a permanent shunt in his brain. He will frequently bang
his head on objects. He suffers from seizures and is on medication. He has been
diagnosed with sensory dysfunction for which he requires therapy. He is not toilet-trained
and will have to be in diapers for his entire life. He needs to be in an electric wheelchair,
which will have to be paid for and replaced as he grows older. Julie Arthur must transport
him to frequent medical and other appointments, including physical therapy
appointments.
c.
J.D.V. was born addicted to methadone and spent the first two months of his life
in the hospital. He has severe asthma, requiring nebulizers and inhalers and hospital
emergency room treatment as necessary. He has significant behavioral problems
featuring head banging and attacking other children. He has an abnormal need for
structure and consistency. Any change in routine causes him to have extremely violent
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reactions. He requires constant supervision and cannot be left alone with other children.
Day care is not appropriate for him. He is to be evaluated for autism. He will require
frequent therapy appointments with different therapists.
26.
Julie Arthur is the maternal grandmother of the three children and lives in Greene County
with her husband, David Arthur, and their child who is 12 years of age.
27.
Julie Arthur and David Arthur are licensed foster parents.
28.
In December of 2013, J.T.J., J.A.V., J.D.V. (“the three children”) were placed with Julie
Arthur and David Arthur as foster children.
29.
Julie Arthur had been employed as an insurance agent, making approximately $
a year
before the three children began to live with the family.
30.
However, after the three children were placed with her she could no longer work
inasmuch as she has to devote her day to getting the three children to-and-from medical and
therapy appointments and providing them with the intensive supervision that they demand.
31.
As of January 1, 2015, the foster payment rates in Indiana are as follows:
Age 0-4
Age 5-13
Age 14-18
Foster Care
$20.17
$21.90
$25.27
Foster Care with
Services
Therapeutic Foster
Care
Therapeutic Plus
$27.94
$29.67
$33.04
$40.08
$41.81
$45.18
$63.83
$65.56
$68.93
32.
Julie and David Arthur receive foster care payments totaling $145.72 a day for the three
boys: $65.56 per day for J.T.J. and $40.08 per day for the other two children.
33.
The foster care payments totaling $145.72 a day are a recognition by DCS that the three
children have profound disabilities and extraordinary needs.
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34.
This sum of money is absolutely necessary to care for these children due to their
profound disabilities and extraordinary needs.
35.
The three children are now available for adoption.
36.
Julie Arthur and David Arthur wish to adopt the three children and the DCS has approved
of the adoption.
37.
Julie Arthur and David Arthur have initiated an adoption proceeding in Greene Circuit
Court to adopt the three children. That action is pending.
38.
David Arthur is employed and his gross income is approximately $40,000 a year.
39.
Julie Arthur and David Arthur, their biological child, and the three children currently live
in a 3 bedroom home. Under the best of circumstances a three-bedroom home would be
problematic for a family with one girl and three boys. However, given the behavioral difficulties
of the three children this living arrangement is untenable. Because of his severe behavioral
problems, one of the boys has to have a room all to himself. This has necessitated one of the
other boys sharing a room with Julie Arthur and David Arthur’s daughter and the other boy
sleeping in the house’s living room. Julie Arthur and David Arthur recognize that they need to
purchase a larger home.
40.
The three children are each a “child with special needs” under Indiana law.
41.
Accordingly, Julie Arthur and David Arthur, once they adopt the children, are entitled to
an adoption assistance payment for each child.
42.
Julie Arthur and David Arthur asked the DCS to receive adoption assistance payments for
the three children equal to the foster care assistance currently being received. They estimated
that this amount was minimally necessary, when combined with their existing income and
resources, to cover the ordinary and special needs of the three children as well as the anticipated
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needs of the three children.
43.
They presented information to the DCS that not only demonstrated the needs of the three
children and the current income and expenses for the family, but also that Ms. Arthur had had to
sacrifice her income to take care of the three children.
44.
Despite recognizing the extraordinary needs of the three children in establishing their
foster care payments the CEU-DCS has stated that it would provide a total per diem of only $52
a day, less than 36% of the foster care payments and less than the foster care payments that DCS
makes for children without special needs.
45.
CEU-DCS has stated that this is its “final offer.”
46.
CEU-DCS has not taken into account the loss of the family’s income because Ms. Arthur
has been required to leave her employment. It has not taken into account the fact that the family
needs to purchase a new home. It has not taken into account the numerous expenses that the three
children will incur both currently and in the future.
47.
The adoption assistance agreement must be finalized before the adoption of the three
children can occur.
48.
Julie Arthur and David Arthur will not be able to provide for the three children, their
daughter, and themselves without receiving adoption assistance.
49.
One of the purposes of adoption assistance payments under Title IV-E of the Social
Security Act is to facilitate the permanent placement of children in foster care.
50.
The actions and inactions of CEU-DCS thwarts that purpose.
51.
Plaintiffs are being caused irreparable harm for which there is no adequate remedy at law.
52.
At all times defendant has acted under color of state law.
Legal claim
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53.
In determining the adoption assistance payment for the three children DCS-CEU has
failed to properly take into consideration the needs of J.T.J., J.A.V., and J.D.V., and the
circumstances of Julie and David Arthur in violation of 42 U.S.C. § 673(a)(3).
Relief requested
WHEREFORE, plaintiffs request that this Court:
1.
Accept jurisdiction over this case and set it for hearing at the earliest opportunity.
2.
Declare that the actions and inactions of defendant have violated federal law for
the reason noted above.
3.
Enter a preliminary injunction, later to be made permanent, enjoining defendant to
negotiate adoption assistance payments for the three children that properly take into
consideration the needs of J.T.J., J.A.V., and J.D.V., and the circumstances of Julie
Arthur and David Arthur.
4.
Award plaintiffs their costs and reasonable attorneys’ fees pursuant to 42 U.S.C. §
1988.
5.
Award all other proper relief.
s/ Kenneth J. Falk
Kenneth J. Falk
No. 6777-49
ACLU of Indiana
1031 E. Washington St.
Indianapolis, IN 46202
317/635-4059 ext. 104
fax: 317/635-4105
[email protected]
Jan P. Mensz
ACLU of Indiana
1031 E. Washington St.
Indianapolis, IN 46202
317/635-4059 ext. 107
fax: 317/635-4105
[email protected]
Attorney for Plaintiffs
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