In re Appeal of Sharon McSweeney

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.
2019 VT 25
No. 2018-138
In re Appeal of Sharon McSweeney Supreme Court
On Appeal from
Human Services Board
February Term, 2019
Charles Gingo, Chair
Richard Edward McCormick of Johnson Law Group International, PLLC, Burlington, for
Petitioner-Appellant.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jared C. Bianchi, Assistant Attorney
General, Waterbury, for Respondent-Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. ROBINSON, J. Petitioner challenges a Human Services Board decision that
affirmed an adoption-assistance subsidy calculated by the Department for Children and Families
(DCF) for petitioner’s adopted son once he turned eighteen. We affirm.
¶ 2. The facts are not substantially disputed. Petitioner and her spouse adopted their
son through DCF in 2003. As part of the adoption process, petitioner entered into an adoption-
assistance agreement with DCF, which provided for a daily subsidy payment of $50.69. Per the
agreement’s terms, both the adoptive parent and DCF had to agree to any changes. The agreement
contained the following provision concerning its termination:
Termination will occur in any of the following circumstances:
...
D. when the child reaches the age of 18. If the child has a
documented mental or physical handicap which warrants
continuation, adoption assistance payments may be provided until
the child reaches his or her 21st birthday. Payments past the 18th
birthday of the adopted child shall continue only upon waiver from
the commissioner of the Department or designate . . . .
¶ 3. Shortly before the child turned eighteen, DCF notified petitioner that the existing
agreement would terminate on the child’s birthday. In the February 2017 notification letter, DCF
explained that the child might be eligible for an “Over Age 18 Adoption Assistance Agreement”
if the child had been diagnosed with a lifelong physical or mental disability, and it described the
application process. In a March 2017 letter, DCF offered petitioner what it characterized as a
“separate” and “over-age-18” adoption-assistance agreement at a daily rate of $27.59. The new
rate was the maximum available standard rate for children in foster care. Petitioner appealed the
amount of the subsidy to the Board.
¶ 4. The Board affirmed DCF’s decision. As it explained, adoption assistance is a joint
federal-state program, falling under both federal and state law and policy. Federal law provides
that the amount of adoption assistance “shall be determined by agreement between the adoptive
parents and the State or local agency administering the program” and that the amount may not
“exceed the foster care maintenance payment which would have been paid” had the child been in
a foster home. 42 U.S.C. § 673(a)(3). The subsidy ends when the child turns eighteen, “or such
greater age as the State may elect under section 675(8)(B)(iii)” or turns twenty-one “if the State
determines that the child has a mental or physical handicap which warrants the continuation of
assistance.” Id. § 673(a)(4)(A)(i).
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¶ 5. The Board concluded that DCF’s practice and policy was to allow for under-
eighteen subsidies that might exceed the standardized foster care rate, depending on a child’s
needs, but to limit over-eighteen subsidies to the standardized foster care rate. It concluded that
the agreement itself, as well as DCF policy, afforded DCF discretion as to whether to continue
benefits beyond the age of eighteen.
¶ 6. The Board rejected petitioner’s claim that she was legally entitled to continue
receiving the same adoption subsidy that she had received prior to her son’s eighteenth birthday
because the continued benefits were essentially an extension of the (initial) adoption-assistance
agreement, and subsidies should thus continue at the same (under-eighteen) rate. The Board noted
that the agreement itself and DCF policy were silent about whether the over-eighteen assistance
would continue at the same rate. But the question of whether assistance would continue at all was
clearly left to DCF’s discretion, and the under-eighteen adoption-subsidy agreement plainly stated
that it would terminate when the child reached eighteen.
¶ 7. The Board found that DCF did in fact terminate the under-eighteen agreement here
and offered a new and separate over-eighteen agreement, consistent with the terms of the under-
eighteen agreement and with DCF policy. Accordingly, the Board affirmed DCF’s decision. See
3 V.S.A. § 3091(d) (“The Board shall not reverse or modify Agency decisions which are
determined to be in compliance with applicable law . . . .”); Fair Hearing Rule No. 1000.4D, Code
of Vt. Rules 13 020 002, http://www.lexisnexis.com/hottopics/codeofvtrules (describing scope of
Board’s authority). Petitioner appealed.
¶ 8. On appeal, petitioner does not argue that DCF’s reduction of the subsidy amounts
after the child turned eighteen violated the parties’ initial adoption-subsidy agreement or DCF’s
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policy and practice.1 Instead, petitioner primarily asserts that federal law prohibits DCF from
unilaterally modifying the amount of the adoption-assistance subsidy when the child turns
eighteen; petitioner maintains that DCF must negotiate the amount with the adoptive parents.
Accordingly, petitioner essentially argues that DCF’s established practice of terminating adoption-
assistance agreements when a child turns eighteen, and then entering into new agreements with
new terms when it decides to pay benefits beyond the child’s eighteenth birthday, violates federal
law. In support of this argument, petitioner relies on 42 U.S.C. § 673(a)(3).
¶ 9. Section 673(a)(3) provides:
The amount of the payments to be made in any case under [the
applicable section] 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 . . . 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.
¶ 10. We conclude that § 673(a)(3) does not preclude DCF from adopting a policy, and
entering into adoption-assistance agreements, pursuant to which DCF offers reduced adoption-
assistance subsidies to adoptive parents of qualifying children over eighteen. Our conclusion rests
1
As noted above, the written agreement between DCF and petitioner specifically states
that the agreement terminates “when the child reaches the age of 18,” and reflects only that
adoption-assistance payments “may” be provided until the child reaches his or her twenty-first
birthday. That is consistent with DCF’s established policies. See Family Services Policy Manual,
Policy 193, “Adoption Subsidy,” https://dcf.vermont.gov/fsd/policies [https://perma.cc/2VPH-
BVGD] (providing that DCF may enter into agreement to provide assistance for adoptees over
eighteen and until they reach twenty-one when adoptee has lifelong disability that limits activities
of daily living as determined by medical professional and when other requirements are satisfied).
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primarily on the fact that DCF’s extension of benefits after a child turns eighteen is itself within
DCF’s discretion. Given that Congress provided states with discretion as to whether to provide
any benefits to children over eighteen, it would be incongruous to conclude that Congress intended
that if a state elects to provide such benefits, it must maintain a particular level of benefits.
¶ 11. For purposes of the adoption-assistance subsidies, federal law defines a “child”
generally to mean “an individual who has not attained eighteen years of age.” Id. § 675(8)(A). A
state, at its “option,” may extend the definition to include other specified classes of individuals.
Id. § 675(8)(B). The statute describing the adoption-and-guardianship-assistance program
provides that payments may not be made to adoptive parents with respect to a child “who has
attained (I) 18 years of age, or such greater age as the State may elect under section 675(8)(B)(iii)
of this title; or (II) 21 years of age, if the State determines that the child has a mental or physical
handicap which warrants the continuation of assistance.” Id. § 673(a)(4)(A)(i). The statute does
not compel states to provide benefits beyond the age of eighteen but gives them discretion to
continue benefits until the adoptee turns twenty-one if warranted.
¶ 12. In this case, where, among other things, there is no claim of an unconstitutional
condition or otherwise improper distinction, the following maxim applies: “in laws conferring
power, the greater authority implies the lesser of the same nature.” Foster v. Foster, 56 Vt. 540,
550 (1884). It would not make sense, given the purpose of the federal statute, to read § 673 to
suggest that a state can cut off benefits altogether when a child turns eighteen but cannot at that
juncture provide reduced benefits calculated pursuant to a different, and lesser, benefit schedule.
This interpretation would deter states from providing over-eighteen subsidies at all. See, e.g.,
Knollwood Bldg. Condos. v. Town of Rutland, 166 Vt. 529, 544, 699 A.2d 31, 41 (1997)
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(declining to construe statute in way that would undermine its primary purpose). 2 We therefore
reject petitioner’s argument.
Affirmed.
FOR THE COURT:
Associate Justice
2
Finally, we reject petitioner’s unpreserved argument that the over-eighteen adoption-
assistance agreement is unenforceable because the subsidy it provides is unconscionably low. We
do not entirely understand the argument—if the agreement were unconscionable and therefore
unenforceable, there would be no basis for petitioner to receive over-eighteen benefits at all. What
petitioner really wars with is DCF’s policy of limiting over-eighteen benefits, not the agreement
embodying that policy. Because the agreement here comports with state and federal law as to the
amount of benefits provided, it is not in any event unconscionable.
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