State’s Adoption Aid Program Uses Income Factor Illegally, Suit Claims

California’s adoption assistance program violates federal law and discourages families from adopting needy children, consigning many to a less secure life in foster care, according to a lawsuit to be filed today in federal court.

The class-action suit is being brought on behalf of seven children whose foster parents would like to adopt them but say they cannot afford to because state policies make them ineligible for financial help.

“Parents who adopt foster children are the ultimate volunteers--they’re solving the problems somebody else created,” said Carole Shauffer of the Youth Law Center, a San Francisco-based advocacy group filing the suit.

“But they are justifiably fearful that they won’t be able to meet their children’s needs without any help from the state.”

Federal law guarantees adoptive families financial assistance with the costs of raising so-called special needs children, a group that includes youngsters with physical and mental disabilities as well as those who have been abused or neglected by their biological parents.

The lawsuit contends that the state is denying such aid to families who earn more than the statewide median income--imposing a means test that is explicitly illegal under federal law.

As a result, many foster parents--who represent the bulk of those who adopt special needs children--are choosing not to adopt because of uncertainty about their ability to provide for a child, the lawsuit says.

The suit names as defendants Gov. Pete Wilson and Eloise Anderson, director of the state Department of Social Services.

Wesley Beers, California’s adoptions chief, denied that the state imposes a means test in determining whether a family gets adoption aid, saying that state regulations expressly forbid it.

Beers acknowledged that family income is one factor that social workers look at as they determine whether to award financial assistance. If social workers in some counties are using family income as the sole measurement to determine eligibility, they would be in violation of state regulations, he said.

“It’s just one factor,” Beers said. “And nowhere in the law does it say this is the deciding factor.”

Larry Bolton, chief counsel for the Department of Social Services, also denied the existence of a means test.

But he said that complaints about the issue from the Youth Law Center prompted the department to send out a letter this week to all 58 counties, stressing that income may not be the sole factor determining eligibility for adoption aid.

“In case there’s some confusion, we’re spelling it out very clearly for the counties,” Bolton said. “We don’t want any misunderstanding about this.”

The state also has hired a private firm to conduct training with social workers, who will be reminded that a means test is not to be used to determine eligibility for aid, Bolton said.

The lawsuit comes as Wilson is attempting to double the number of adoptions through public agencies in California and offer more children in foster care the hope of a permanent home. In the last year, such adoptions increased by 24%, Beers said.

But more than 22,000 special needs children remain adrift in California’s sprawling foster care system and awaiting adoption, a recent estimate showed.

Because such children are hard to place and come with expensive needs--ranging from physical therapy to ongoing medical treatments and counseling--Congress in 1980 created the Adoption Assistance Program to provide aid for those who might not otherwise be able to adopt.

In California, the average monthly payment for adoption assistance is about $450. Although the program may sound expensive--the budget is $140 million this year--maintaining a child in foster care costs taxpayers more than twice as much, state statistics show.

Aside from those calculations, adoption provides children with parents for life--not a foster care relationship that legally ends at age 18.

The children in the lawsuit come from three families, in San Bernardino, Stanislaus and Mendocino counties. The names were changed by their attorneys for their protection, but the lawsuit offers an account of their experiences.

Jimmy, 6, has lived with his foster parents in Ukiah since the age of 3 weeks, the last time his biological mother saw him. Born with severe fetal alcohol syndrome, he is tiny for his age, suffers from severe hyperactivity and has continual eye problems requiring complicated surgeries.

Jimmy’s foster parents--who have five grown children of their own--filed a petition to adopt him but said they were told they would receive no adoption assistance because their income exceeded the statewide median. They appealed, but an administrative law judge upheld the ruling based on the state regulations.

Mark, 11, and Zachary, 4, are siblings by birth and have lived with their foster family in San Bernardino County for about three years. Their foster parents--a social worker and an engineering inspector--want to adopt the brothers, but said they were told they would receive no adoption assistance if their income exceeded $66,000--the statewide median for a family their size.

With an income of nearly that, the foster family decided they could not take the risk of adopting the boys given the costs associated with raising them. The elder child is undergoing psychological counseling, and both boys have required speech therapy and other special care.

Citing such families, the lawsuit says state policies--and county enforcement of those policies--are deterring loving parents from taking the step from foster parent to adoptive parent.

Jimmy’s foster mother--a stay-at-home mother whose husband works as an obstetrician--agreed.

“My feeling is that when we adopt, we take an oath and swear that this child will be ours in every way and that we’ll be responsible for him for his lifetime,” she said. “But the state doesn’t take an equal oath. Their partnership is very shaky and revokable.”