Ayotte v. Dep't of Health & Human Servs.

• Decision Date: 27 November 2018
• Docket Number: No. 339090,339090
• Citation: Ayotte v. Dep't of Health & Human Servs., 326 Mich.App. 483, 927 N.W.2d 730 (Mich. App. 2018)
• Parties: Joseph AYOTTE, Plaintiff-Appellee, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

326 Mich.App. 483

927 N.W.2d 730

Joseph AYOTTE, Plaintiff-Appellee,

v.DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.

No. 339090

Court of Appeals of Michigan.

Submitted September 5, 2018, at Lansing.

Decided November 27, 2018, 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Chief Legal Counsel, and Brian K. McLaughlin, Assistant Attorney General, for the Department of Health and Human Services.

Allegiant Legal, PC (by Paula A. Aylward ), Marshall, for Joseph Ayotte.

William E. Ladd, Detroit, for Amicus Curiae, the State Bar of Michigan Children’s Law Section.

Dorene S. Allen, Midland, Monte J. Burmeister, Grayling, and Susan J. Dobrich for Amicus Curiae, the Michigan Probate Judges Association.

Before: Meter, P.J., and K. F. Kelly and Gleicher, JJ.

Meter, P.J.Defendant, the Michigan Department of Health and Human Services, appeals by leave granted an order reversing defendant’s determination to cancel the Title IV-E¹ foster-care funding of plaintiff, Joseph Ayotte. We conclude that because the temporary detention order issued against plaintiff was not an order removing him from his home and into foster care , the fact that this order did not include a "contrary to the welfare" finding, see 42 USC 672(a)(2)(A)(ii), does not preclude plaintiff’s eligibility for Title IV-E foster-care funding. We affirm the decision of the circuit court.

Plaintiff, 16 years old at the time, engaged in domestic violence, see MCL 750.81(2), on November 10, 2014, and Arenac Circuit Court Judge Richard Vollbach entered a temporary detention order on November 11, 2014. Plaintiff admitted to assaulting his mother and entered a plea of admission to a delinquency petition on November 12, 2014. Judge Vollbach ordered plaintiff to serve three days in the Roscommon Juvenile Detention Center (RJDC), after which he would be "placed on intensive probation under the supervision of the juvenile officer" in the home of his mother.

However, later in the day on November 12, defendant filed a child-protection petition seeking plaintiff’s removal from his mother’s home, citing, among other things, her problems with substance abuse. After a plea by the mother, the court assumed jurisdiction over plaintiff on November 13, 2014, and specified a removal-from-the-home date of November 13, 2014. In an amended order of adjudication signed on November 14, 2014, the court ordered that plaintiff be placed with defendant for care and supervision after his "release[ ] from the [RJDC] on Friday, November 14, 2014[.]"

Initially, defendant determined that plaintiff was eligible for Title IV-E foster-care funding for his placement outside his mother’s home. See 42 USC 670 et seq .² Thereafter, in November 2015, Tiphanie Charbonneau, a Title IV-E specialist with defendant, conducted an annual review of Title IV-E funding, and plaintiff’s case was chosen at random for a specific review. Charbonneau concluded that plaintiff, "in fact, was not supposed to be IV-E eligible" because the delinquency order removing plaintiff from his home did not contain language indicating that it was contrary to plaintiff’s welfare to be removed from his home.

Plaintiff’s guardian ad litem sought an administrative hearing. The administrative law judge (ALJ) noted that FOM 902 of defendant’s Children’s Foster Care Manual³ was at issue. FOM 902 addresses "funding determinations and Title IV-E eligibility," and the version in effect at the time of the hearing provided, in relevant part:

Federal regulations require the court to make a contrary to the welfare or best interest determination in the first court order removing the child from his/her home for title IV eligibility. The court order must coincide with removal of the child....

* * *Note: The court can make the contrary to the welfare finding on any order as long as the determination is made.^{[4 ]}

Relying on 42 USC 672(a)(2)(A)(ii) and 45 CFR 1356.21(c), the ALJ found that "while the finding of contrary to the welfare was made in the Order After Preliminary Hearing [in the child-protection matter], the order was not a removal order as the child was already removed as clearly documented in the Order to Apprehend and Detain ...." The ALJ concluded that defendant "acted in accordance with Department policy when it denied continuing Title IV-E funding ... because the Court’s Order to Apprehend and Detain did not have the requisite contrary to the welfare findings."

Plaintiff appealed in the circuit court, which concluded that the ALJ committed clear legal error. The circuit court entered an order reversing the ALJ’s decision "[f]or the reasons stated on the record...." The court concluded on the record that the temporary detention order was not the first order of removal but, rather, was an arrest warrant. The court stated:

There was no contemplation that the removal from the home was necessary, the purpose of the warrant was to punish, or to, first require the juvenile to respond to the allegation that he committed a crime, the crime of domestic violence against his mother. There was no contemplation in the late hours of the evening, when Judge Vollbach reviewed the deputy’s report, that removal from the home was necessary ....

Only later when the [child-protection] petition ... was filed did it become apparent to the [c]ourt that the issue of removal from the home for reasons having to do with the child[’s] welfare, rather than to punish him, was perhaps necessary. There was a hearing on the 13th, Judge Vollbach decided that ... staying in the home was contrary to the child’s welfare, and ordered him removed, and appropriately made that finding in his order of November 13th.

The court further explained:

[F]oster care is different from detention, and detention is for a purpose completely unrelated to foster care. And there was no reason, the statutes do not indicate, simply because a form has the possibility of checking a box, and failure to check the box means that you’re forever precluded from making that finding.^[5]

These are essentially two different proceedings with two different purposes.

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.^[6]

Defendant now appeals the circuit court’s ruling.

This Court’s review of circuit court decisions reversing defendant’s administrative decisions is subject to the following standards of review set forth in Grass Lake Improvement Bd. v. Dep’t Of Environmental Quality , 316 Mich. App. 356, 362-363, 891 N.W.2d 884 (2016) :

We review the circuit court’s decision to determine whether it "applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings." City of Sterling Heights v. Chrysler Group, LLC , 309 Mich. App. 676, 681, 873 N.W.2d 342 (2015) (quotation marks and citation omitted). We review de novo the circuit court’s interpretation and application of statutes. Glenn v. TPI Petroleum, Inc , 305 Mich. App. 698, 702, 854 N.W.2d 509 (2014). On the other hand, an administrative agency’s statutory interpretation is reviewed under the standard first enunciated in Boyer-Campbell Co. v. Fry , 271 Mich. 282, 260 N.W. 165 (1935) :

[T]he construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons. However, these are not binding on the courts, and [w]hile not controlling, the practical construction given to doubtful or obscure laws in their administration by public officers and departments with a duty to perform under them is taken note of by the courts as an aiding element to be given weight in construing such laws and is sometimes deferred to when not in conflict with the indicated spirit and purpose of the legislature. [ In re Complaint of Rovas , 482 Mich. 90, 103, 754 N.W.2d 259 (2008) (quotation marks and citations omitted; second alteration in original), quoting Boyer-Campbell , 271 Mich. at 296–297, 260 N.W. 165.]

"Respectful consideration" of an agency’s statutory interpretation is not akin to "deference," at least as that "term is commonly used in appellate decisions" today. Rovas , 482 Mich. at 108, 754 N.W.2d 259. While an agency’s interpretation can be a helpful aid in construing a statutory provision with a "doubtful or obscure" meaning, our courts are responsible for finally deciding whether an agency’s interpretation is erroneous under traditional rules of statutory construction. Id . at 103, 108, 754 N.W.2d 259.

"Title IV-E establishes federal funding to support state foster care systems and conditions funding on compliance with federal requirements." In re Rood , 483 Mich. 73, 102, 763 N.W.2d 587 (2009) (opinion by CORRIGAN , J.); see also 42 USC 671(a). A state plan, to be eligible for funding, must "provide[ ] for foster care maintenance payments in accordance with section 672...." 42 USC 671(a)(1).⁷ To be eligible for Title IV-E foster-care maintenance payments, the child must have been removed from the home of a relative "into foster care," and the removal and foster-care placement must meet, and continue to meet, the requirements of 42 USC 672(a)(2). See 42 USC 672(a)(1).⁸ 42 USC 672(a)(2) provides:

The removal and foster care placement of a child meet the requirements of this paragraph if—

(A) the removal and foster care placement are in accordance with—

* * *(ii) a judicial determination to the effect that continuation in the home from which removed would be contrary to the welfare of the child and that reasonable efforts of the type described in section 671(a)(15) of this title for a child have been made;

(B) the child’s placement and care are the responsibility of—

(i) the State agency administering the State plan approved under section 671 of this title;

(ii) any other

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