The opinion of the court was delivered by: Judge Smith-ribner
Argued: February 23, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Gary and Lori Laird and Legrand and Shelli Johnson (Petitioners) petition the Court for review of the final orders of the Secretary of the Department of Public Welfare (DPW) denying adoption subsidies for Petitioners' special needs children. The Administrative Law Judges (ALJ) awarded subsidies to Petitioners in November and December 2007, and the Regional Manager of the Bureau of Hearings and Appeals affirmed. Upon reconsideration, the Secretary of DPW set aside the awards on the basis that the children were ineligible for subsidy under Section 772 of the Act known as the Adoption Opportunities Act (State Act).*fn1 The issue is whether the Secretary erred in denying eligibility to these children.
Alyssa and Addison are African-American females who were born in Philadelphia on March 5, 1998 and November 30, 1998, respectively. J.J.J. is an African-American male born in Philadelphia on June 6, 1995. Alyssa and Addison were placed with the Lairds in Utah and J.J.J. with the Johnsons in New Mexico through a private DPW-licensed non-profit agency, the Adoption Resource Center, Inc. (ARC). The Lairds adopted their children in October 1998 and in July 1999, respectively, and the Johnsons adopted J.J.J. in December 1995. Parental rights to all of the children were terminated under Pennsylvania law, and the adoptions were finalized in Utah and New Mexico, respectively.
At the time of adoption, ARC's counsel Tara E. Gutterman informed Petitioners that their children would be ineligible for subsidies based on counsel's belief that the Philadelphia Department of Human Services (DHS) was opposed to certifying eligibility for subsidies for children adopted through a private agency. In 1999 Gutterman successfully argued in Adoption ARC, Inc. v. Department of Public Welfare, 727 A.2d 1209 (Pa. Cmwlth. 1999), that children adopted through a private DPW-licensed agency were eligible for subsidies. Several years later, in April 2007, Petitioners applied for retroactive subsidies through Gutterman, which DHS denied.
The State Act provides a subsidy to prospective adoptive parents to promote adoptions of children "who are physically and/or mentally handicapped, emotionally disturbed, or hard to place by virtue of age, sibling relationship, or ethnicity." Section 771 of the State Act, 62 P.S. §771. Eligibility for a subsidy is determined pursuant to 55 Pa. Code §3140.202, which provides in relevant part:
(b) The county agency shall certify for adoption assistance children whose placement goal is adoption and who meet the following requirements:
(1) The child is 17 years of age or younger.
(2) Parental rights have been terminated under
23 Pa. C.S. Part III (relating to the Adoption Act).
(3) The child is in the legal custody of the county agency or another agency approved by [DPW].
(4) The child shall have at least one of the following ...