Ninemire v. Kansas Dept. of Srs

• Decision Date: 13 July 2007
• Docket Number: No. 96,461.,96,461.
• Parties: Gary NINEMIRE and Tiffany Ninemire, Appellants, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellee.
• Court: Kansas Supreme Court

162 P.3d 22

Gary NINEMIRE and Tiffany Ninemire, Appellants, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellee.

No. 96,461.

Supreme Court of Kansas.

July 13, 2007.

J. Eugene Balloun, of Shook, Hardy & Bacon, LLP, of Overland Park, argued the cause, and Amy S. Merritt, of Merritt Law Office, of Olathe, was with him on the brief for the appellants.

Roberta Sue McKenna, of Kansas Department of Social and Rehabilitation Services, of Topeka, argued the cause, and Paula B. Hurt, of the same agency, was with her on the brief for the appellee.

The opinion of the court was delivered by ROSEN, J.:

This case involves the amount of a monthly adoption subsidy payment to be made by the Secretary of Social and Rehabilitation Services (SRS) on behalf of a former foster child. SRS determined the child was eligible for federal adoption assistance and authorized a subsidy payment but set the amount at $0 because the child did not currently exhibit any special needs. The adoptive parents bring this appeal, seeking a monthly payment equal to the foster care payments they received before adopting the child.

C.L.N. was born in September 2002. C.L.N. tested positive for cocaine at the time of her birth but did not require admission to the neonatal intensive care unit and did not receive any specialized treatment after her birth due to the cocaine. SRS immediately placed C.L.N. in protective custody. When C.L.N. was 5 days old, SRS placed C.L.N. in foster care with Gary and Tiffany Ninemire, whose family included three children, ages 11, 10, and 8. SRS paid the Ninemires $540 per month as a foster care payment for C.L.N.

C.L.N.'s birth parents relinquished their parental rights nearly 1 year after C.L.N.'s birth. The Ninemires expressed an interest in adopting C.L.N. and requested a monthly adoption assistance subsidy, stating that they had promised their other three children that they would not have to sacrifice anything except space and some parenting time. The Ninemires submitted a family budget as part of their home study during the adoption process.

The Ninemires had C.L.N. evaluated when C.L.N. was 13 months old because they were concerned about C.L.N.'s self-calming behaviors like rocking, moaning, toe-walking, and hitting her head. After performing standardized testing to assess C.L.N.'s development, the evaluator concluded that C.L.N. was developing within normal limits. However, because the Ninemires expressed concerns regarding C.L.N.'s sensory processing, the evaluator recommended that C.L.N. receive services from Lakemary Center Infant-Toddler Program. Medicaid covered the cost of those services.

When C.L.N. was 16 months old, a social worker conducted an evaluation for C.L.N.'s adoptive placement and reported that C.L.N. was developmentally on target with no social or emotional problems. The social worker described C.L.N. as a "happy, healthy little girl who loves to smile and be held" and concluded that C.L.N. "is developing normally. She may need extra help with sensory problems and speech, but that is all this worker is aware of currently."

The Ninemires met with SRS social workers on May 28, 2004, to finalize an adoption assistance agreement on behalf of C.L.N. SRS determined that C.L.N. was eligible for assistance under Title IV-E, 42 U.S.C. §§ 670 et seq. (2000), the federal adoption assistance program, based on the "guarded prognosis" category. The "guarded prognosis" category applies to children who are not being treated for a specific disability but may develop one due to factors in the child's background. Based on this determination, SRS and the Ninemires entered into an adoption assistance agreement, which provided that the Ninemires would receive a Title XIX Medicaid insurance card for C.L.N. and a nonrecurring payment of $550 to cover adoption expenses. The parties also agreed that C.L.N. was eligible for a monthly adoption assistance payment but set the amount of the monthly subsidy at $0 because there were no special needs identified to justify a monthly subsidy at that time.

In August 2004, the Ninemires requested an administrative hearing to increase the amount of C.L.N.'s monthly adoption subsidy from $0 to $540 per month. The Ninemires submitted a revised budget, which did not include any expenditures specifically for C.L.N. Following a hearing, an administrative hearing officer affirmed the monthly subsidy amount of $0, as agreed upon by the parties in the adoption assistance agreement.

After finalizing C.L.N.'s adoption in October 2004, the Ninemires appealed the hearing officer's decision to the State Appeals Committee. When the State Appeals Committee affirmed the hearing officer's decision, the Ninemires filed a petition for review of the agency's action in the district court. The district court affirmed the agency's action. The Ninemires then appealed the district court's decision to the Court of Appeals. However, before the Court of Appeals heard the case, we transferred it to this court on our own motion pursuant to K.S.A. 20-3018(c).

The Ninemires assert that the district court erroneously interpreted the law when it concluded that SRS did not have to pay them a monthly adoption subsidy on behalf of C.L.N. The Ninemires raise three arguments. First, the Ninemires argue that the district court misinterpreted the requirements for eligibility under federal statutes. Second, the Ninemires argue that the district court misinterpreted the purpose for the federal adoption assistance statutes. Third, the Ninemires argue that the district court misinterpreted the law when it found that C.L.N. did not have any special needs.

We will not address the Ninemires' first and second arguments because there is no dispute between the parties. Both parties agree that C.L.N. qualifies as a special needs child pursuant to Title IV-E, the federal adoption assistance program. See 42 U.S.C. § 673(c) (2000). Likewise, both parties agree that the adoption assistance program was enacted to encourage the adoption of children with special needs by providing ongoing financial and medical assistance to the families who adopt them.

To resolve this matter, we turn our focus to the Ninemires' third argument, that the district court misinterpreted the law when it concluded that C.L.N. did not have any special needs. Resolution of this issue involves the review of an agency action. An appellate court's review of an agency action is subject to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See K.S.A. 2006 Supp. 77-603; Sokol v. Kansas Dept. of SRS, 267 Kan. 740, 745, 981 P.2d 1172 (1999). An appellate court reviews an administrative agency's decision using the same standard as the district court. Sokol, 267 Kan. at 746, 981 P.2d 1172. Although K.S.A. 77-621(c) limits the review of an agency action, it authorizes courts to review the agency's interpretation or application of law. See K.S.A. 77-621(c)(4). The interpretation of a statute is a question of law subject to unlimited review. Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 270, 130 P.3d 555 (2006). Under the doctrine of operative construction, courts have given deference to an administrative agency's interpretation of a statute it has been charged with enforcing. "However, `[t]he final construction of a statute [always] rests within the courts.'" 281 Kan. at 270, 130 P.3d 555 (quoting In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 842, 877 P.2d 437 [1994]).

The Ninemires essentially argue that C.L.N. is entitled to a monthly adoption assistance payment by virtue of her eligibility under Title IV-E as a special needs child, regardless of whether C.L.N. actually has any special needs demanding spending. The Ninemires have characterized Title IV-E subsidies as "open ended entitlements," which provide C.L.N. with an absolute right to a benefit, granted immediately upon meeting the statutory requirements. In addition, the Ninemires argue that the district court erred when it concluded that C.L.N. did not have any special needs, because the federal policies for implementing the statutes include ordinary needs for children who qualify.

Title IV-E authorizes the federal government to appropriate money to states for the purpose of "enabling each State to provide . . . adoption assistance for children with special needs." 42 U.S.C. § 670. 42 U.S.C. § 673(a)(1)(A) requires a State to enter into an adoption assistance agreement with the adoptive parents of special needs children. An adoption assistance agreement is a "written agreement, binding on the parties to the agreement, between the State agency, other relevant agencies, and the prospective adoptive parents of a minor child." 42 U.S.C. § 675(3) (2000). The agreement must specify "the nature and amount of any payments, services, and assistance to be provided" under the agreement. 42 U.S.C. § 675(3). 42 U.S.C. § 673(a)(1)(B) establishes the types of payments to be included in the adoption assistance agreement, providing:

"(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)[defining children eligible for a monthly payment], 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." (Emphasis added.)

In addition to paying for nonrecurring expenses associated with the adoption, the State must provide health insurance coverage for special needs children subject to an adoption...