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How to Challenge the Taking of a Foster Child’s Social Security Benefits

By Lewis Pitts

Child Welfare Agencies across the nation are seeking to recoup the costs of providing foster care and related services for foster children by becoming payee of the child’s Supplementary Security Income or Social Security Survivor’s benefits (hereinafter both labeled SSB) and then pocketing the money to reimburse itself for the cost of caring for the child. The Social Security Act allows an institutional payee to reimburse itself for the costs of maintaining the beneficiary so this practice does not violate federal law (see Washington State Department of Social and Health Services et al. v. Guardianship Estate of Keffeler et al. [PDF]). However, the payee’s over-arching duty required by the SSA is to act in the best interest of the beneficiary. Here that means the best interest of the foster child. Similarly, every state foster care agency in the country is required by state law to act in the best interest of child. If your state foster care agency, acting as payee, is pocketing the child’s SSB when there are specific, competing needs for those funds, such as for clothes, a therapeutic summer camp, tutoring, a nest-egg for aging-out, etc., then legal action can be taken in state court to protect that best interest of the child. Recent North Carolina appellant authority provides a model that can be used in any state.

The spring edition of the CRLC newsletter has an article entitled A Sate Court Remedy for the Keffeler Problem: A Call to Action [PDF] which describes the North Carolina Case. The Guilford County Department of Social Services (DSS) was pocketing the SSB of John G. to pay for his foster care and not using the funds to pay the $221 per month mortgage on the Habitant for Humanity house he inherited from his father. When the house faced foreclosure, John’s GAL attorneys filed a motion before the foster care review judge asking the court to protect John’s foreseeable future needs and force DSS to act in his best interest. John won. DSS appealed and on November 6, 2007 the NC Court of Appeals unanimously upheld the state court’s jurisdiction and wisdom in ordering John’s benefits be used to pay the mortgage. Thereafter, the NC Supreme Court denied the Petition for Discretionary Review filed by DSS. DSS has since applied to the Supreme Court, but has not yet heard whether the court will hear the case.

Odds are that the foster child you represent may not face the loss of a house, but many foster children have a best interest in their benefits being used directly for their unmet needs. Since foster children do not owe debt for foster care, it reasonable to challenge the pocketing of benefits by the state when they would be better spent on a specific need. Below are suggestions on how to challenge the practice.

  1. Read the John G decision and the sample motion. Also read Prof. Dan Hatcher’s comprehensive 2006 Cardozo Law Review article titled Foster Children Paying for Foster Care. Do not let the U.S. Supreme Court Keffeler case, discussed in detail by Prof. Hatcher, deter you. That case sought relief under a federal statute. You will be using state law. Study up on your state laws giving broad jurisdiction to the foster care review judge and setting best interest of the child as the touchstone for decisions relating to the child. Finally, read the appellant brief [PDF] on behalf of John G. to see the responses to the issues raised on appeal by DSS. You are now ready to proceed.
  2. For your test case, be sure to pick a case where the foster care agency’s decision to pocket the benefits for their own budgetary needs will be seen as unreasonably denying a specific need of the foster child. Mental health providers or educators may be willing to testify that the child critically needs individual therapy or a lap-top computer for class and homework; a child soon to age-out needs a nest-egg for rent and utility deposits; or even a used car to get to and from work. Admittedly, for many of the necessary services there are laws and systems supposedly providing them, such as EPSDT and IDEA, but in the real world such meaningful services do not always exist. Further, why shouldn’t a foster child have a chance, using her or his own money, to go on an educational trip, visit relatives, or own more than the plastic bag of personal items they are often moved from placement to placement carrying?
  3. If your client agrees, work out according to your state’s laws and the specific facts the best way to preserve the confidentiality of sensitive matters while allowing you and others to talk publicly about the policy of taking money from foster children. The human interest story of the child’s life always attracts the media and they love to interview the child. The media may connect the story to the larger public interest issue of inadequate funds for foster care and other essential services for at-risk children. Maybe the child will want to speak publicly about the case. Maybe only the child’s initials will be used. Maybe your laws allow the child to determine if the hearing is open to the public. A well selected case will bring the media like flies and every single article about the John G. case was sympathetic to him and prompted considerable outrage from the public. Do all you can to have an organization available to capture, nurture, and direct that outrage into demands for full funding from federal and state legislative bodies. But do not let the paradigm of the perfect case paralyze you from pursuit of even a potential win. Bringing the case/motion is a win-win. Even losing in court in the John G case would have started a public conversation about the un-met needs of children. Further, if your judges are elected, it may be difficult for them to publicly rule against the child.
  4. Even if you bring the motion to halt the taking of the benefits, offer to join hands with the Child Welfare Agency to publicly state how they are drastically under-funded. The ultimate bad guys are the federal and state legislatures that give tax breaks to the wealthy and shred the social safety net. Make allies where you can.
  5. File the motion and lawyer it through with passion. Feel free to contact me for support.

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